Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13493

for CBP employees stationed along the Small Business Regulatory Enforcement DEPARTMENT OF HOMELAND southern border, the total cost to DHS Fairness Act of 1996 SECURITY with the EDCP software would be about $5.1 million in the first three years. If This rule is not a major rule as Coast Guard defined by section 251 of the Small future implementation decisions or 33 CFR Part 105 changes in the volume of apprehensions Business Regulatory Enforcement ultimately resulted in annual Fairness Act of 1996. 5 U.S.C. 804. This [Docket No. USCG–2017–0711] submission of a number of additional rule will not result in an annual effect RIN 1625–AC47 DNA samples less than or greater than on the economy of $100 million or 748,000, required work hours and more; a major increase in costs or prices; TWIC—Reader Requirements; Delay of resulting costs would be reduced or or significant adverse effects on Effective Date increased correspondingly. competition, employment, investment, AGENCY: Coast Guard, DHS. The FBI would also need to provide productivity, or innovation, or on the ACTION: Final rule. additional DNA-sample collection kits, ability of United States-based at a per-kit cost of $5.38, in sufficient enterprises to compete with foreign- SUMMARY: The Coast Guard is delaying numbers to collect samples at the based enterprises in domestic and the effective date for three categories of volumes described above. For example, export markets. facilities affected by the final rule assuming a 3-year phase-in period with entitled, ‘‘Transportation Worker an additional third of the eligible List of Subjects in 28 CFR Part 28 Identification Credential (TWIC)— population added in each successive Crime, Information, Law enforcement, Reader Requirements,’’ published in the year, the additional sample-collection Prisoners, Prisons, Probation and Parole, Federal Register on August 23, 2016. kit costs to the FBI would be $1,341,413 Records. These three categories are: Facilities that to collect 249,333 samples in the first handle certain dangerous cargoes in year, $2,682,827 to collect 498,667 Accordingly, for the reasons stated in bulk, but do not transfer these cargoes samples in the second year, and the preamble, part 28 of chapter I of title to or from a vessel; facilities that handle $4,024,240 to collect 748,000 samples in 28 of the Code of Federal Regulations is certain dangerous cargoes in bulk, and the third year. The FBI will provide to amended as follows: do transfer these cargoes to or from a DHS, without charge, the same services vessel; and facilities that receive vessels that it provides to other Federal PART 28—DNA IDENTIFICATION carrying certain dangerous cargoes in agencies that collect DNA samples, SYSTEM bulk, but do not, during that vessel-to- including assistance with regard to facility interface, transfer these bulk training, DNA-sample collection kits, ■ 1. The authority citation for part 28 is cargoes to or from those vessels. The postage to return the collected samples, revised to read as follows: Coast Guard is delaying the effective analysis of samples, inclusion in CODIS, date for these categories of facilities by Authority: 28 U.S.C. 509, 510; 34 U.S.C. and handling resulting matches. 3 years. Specifically, this rule will delay 12592, 40702, 40703; 10 U.S.C. 1565; 18 Executive Order 13132—Federalism U.S.C. 3600A; Public Law 106–546, 114 Stat. the implementation of the TWIC Reader rule for 370 of the 525 affected Risk This regulation will not have 2726; Public Law 107–56, 115 Stat. 272; Public Law 108–405, 118 Stat. 2260; Public Group A facilities by 3 years, while the substantial direct effects on the States, Law 109–162, 119 Stat. 2960; Public Law remaining 155 facilities (which are all on the relationship between the national 109–248, 120 Stat. 587; Public Law 115–50, facilities that receive large passenger Government and the States, or on the 131 Stat. 1001. vessels), as well as 1 vessel, will have distribution of power and to implement the final rule responsibilities among the various § 28.12 [Amended] requirements within 30 days after the levels of government. Therefore, in effective date of this rule. ■ 2. Amend § 28.12: accordance with Executive Order 13132, DATES: This final rule is effective May 8, it is determined that this rule does not ■ a. In paragraph (b) introductory text, 2020. have sufficient federalism implications remove ‘‘1.1(p)’’ and add in its place ADDRESSES: Documents mentioned in to warrant the preparation of a ‘‘1.2’’. this preamble as being available in the federalism assessment. ■ b. In paragraph (b)(2), remove ‘‘;’’ and docket are included under docket Executive Order 12988—Civil Justice add in its place ‘‘; or’’. number USCG–2017–0711 and available at https://www.regulations.gov. Reform ■ c. In paragraph (b)(3), remove ‘‘; or’’ FOR FURTHER INFORMATION CONTACT: For This regulation meets the applicable and add in its place ’’.’’. information about this document, call or standards set forth in sections 3(a) and ■ d. Remove paragraph (b)(4). email LCDR Kevin McDonald, Coast 3(b)(2) of Executive Order 12988. Dated: February 26, 2020. Guard CG–FAC–2; telephone 202–372– Unfunded Mandates Reform Act of William P. Barr, 1120; email Kevin.J.Mcdonald2@ 1995 uscg.mil. Attorney General. This rule will not result in the [FR Doc. 2020–04256 Filed 3–6–20; 8:45 am] SUPPLEMENTARY INFORMATION: expenditure by State, local and tribal BILLING CODE 4410–19–P Table of Contents for Preamble governments, in the aggregate, or by the private sector, of $100 million or more I. Abbreviations in any one year, and it will not II. Basis and Purpose, and Regulatory History III. Executive Summary significantly or uniquely affect small IV. Discussion of Comments and governments. Therefore, no actions were Developments deemed necessary under the provisions A. Confusion Relating to the Difference of the Unfunded Mandates Reform Act Between ‘‘CDC Facilities’’ and ‘‘Facilities of 1995. That Handle CDC in Bulk’’

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13494 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

B. Concerns Relating to the Effectiveness of (MTSA),1 and in accordance with Card Holder Unique Identifier (CHUID), Electronic TWIC Inspection section 104 of the Security and validating that the credential has not C. Concerns Regarding Partial Accountability for Every Port Act of been revoked by comparing it to a TSA- Implementation of the TWIC Reader Rule 2006 (SAFE Port Act),2 Congress maintained canceled card list, and D. Problems Estimating the Total Cost of requires the electronic inspection of verifying a person’s biometric (e.g., Implementation of the Electronic TWIC Transportation Worker Identification fingerprint) to the biometric template Inspection Requirement Credential (TWIC®) cards (‘‘electronic stored on the card’s chip. Because E. Use of Electronic TWIC Inspection at Passenger Facilities and Vessels TWIC inspection’’) upon entry to secure electronic TWIC inspection requires F. Miscellaneous Comments areas on vessels and in facilities in the either purchasing TWIC readers, G. Comments on the Regulatory Analysis United States. Specifically, the SAFE integration into an existing physical 1. Comments on the Total Cost of the TWIC Port Act mandates that the Secretary access control system (PACS), or other Reader Rule promulgate final regulations that require solutions, and electronic inspection may 2. Comments on the Economic Impact of the deployment of electronic take longer than visually inspecting the the Rules transportation security card readers.3 To card, the TWIC reader rule applied the 3. Comments on the Use of the TWIC Pilot implement this requirement in an electronic TWIC inspection requirement Program Data effective manner, the Coast Guard only to a high-risk subset of MTSA 4. Comments on Collecting New Cost Data undertook a series of regulatory actions vessels and facilities. H. Conclusion culminating in a requirement to After the publication of the TWIC V. Regulatory Analyses reader rule, the Coast Guard received a A. Regulatory Planning and Review implement electronic TWIC inspection at certain high-risk vessels and facilities variety of communications from persons B. Small Entities affected by the rule concerning the C. Assistance for Small Entities regulated under MTSA. Beginning in D. Collection of Information 2006, the Coast Guard and the scope and cost of the rule. Most E. Federalism Transportation Security Administration significantly, numerous parties took F. Unfunded Mandates Reform Act (TSA) conducted a variety of issue with how the Coast Guard defined G. Taking of Private Property rulemaking actions to implement the some of the high-risk facilities that were H. Civil Justice Reform requirements. This culminated in the subject to the electronic TWIC I. Protection of Children 2016 publication of a final rule inspection requirement. While the Coast J. Indian Tribal Governments implementing the requirement for Guard had proposed and finalized text K. Energy Effects electronic TWIC inspection (the ‘‘TWIC that applied the electronic TWIC L. Technical Standards Reader rule’’).4 A detailed summary of inspection requirement to ‘‘facilities M. Environment these actions is available in the that handle certain dangerous cargoes I. Abbreviations preamble to the notice of proposed (CDC) in bulk,’’ various parties expressed confusion with that phrase. ANPRM Advanced notice of proposed rulemaking (NPRM) (the ‘‘TWIC Delay 5 After the rule published, they stated that rulemaking NPRM’’) for this rule. Existing regulations require all they had interpreted that phrase to CDC Certain Dangerous Cargoes mean that the regulation applied only to CFR Code of Federal Regulations eligible persons who require unescorted facilities where bulk CDC was COTP Captain of the Port access to secure areas of MTSA- DHS Department of Homeland Security regulated facilities to possess a TWIC transferred from a facility to a vessel (or GDP Gross Domestic Product card. However, while the TWIC card vice versa), instead of the interpretation 6 FSO Facility Security Officer contains sophisticated authentication, utilized by the Coast Guard. Because of FSP Facility Security Plan validation, and verification capabilities this confusion, various parties stated FR Federal Register using biographic and biometric that they had not been aware of the full GAO Government Accountability Office information, operators of vessels and scope of the proposed requirements in HSI Homeland Security Institute facilities are not required to use these the NPRM, and thus not had an HSOAC Homeland Security Operational features in ascertaining whether persons adequate opportunity to comment on Analysis Center are authorized to enter secure areas. the rule. In response to these inquiries, MSRAM Maritime Security Risk Analysis the Coast Guard published an informal Model Instead, security personnel must inspect the card visually (i.e., printed name, enforcement guidance document in the MTSA Maritime Transportation Security ‘‘Maritime Commons’’ blog, stating that Act of 2002 facial photograph, expiration date, and it would not enforce the electronic NPRM Notice of proposed rulemaking overt security features) to allow entry. OIG Office of the Inspector General The TWIC reader rule changed this TWIC inspection requirements on OMB Office of Management and Budget facilities that did not transfer bulk CDC requirement for a subset of high-risk 7 PAC Policy Advisory Council MTSA-regulated facilities (called ‘‘Risk to or from a vessel. On May 15, 2017, several parties PACS Physical access control system Group A facilities’’), requiring that they petitioned the Coast Guard to amend the RA Regulatory analysis conduct an ‘‘electronic TWIC SAFE Port Act Security and Accountability inspection’’ before allowing access to for Every Port Act of 2006 6 In the final rule, the Coast Guard stated that a § Section symbol secure areas. This involves electronic facility where bulk CDC is stored and handled away TSA Transportation Security authentication using the TWIC card’s from the maritime nexus would be a Risk Group A facility (because the bulk CDC would still be Administration protected by the facility’s security plan and, thus, 1 Public Law 107–295, 116 Stat. 2064 (November TSI Transportation Security Incident would present a vulnerability), and stated that 25, 2002). TWIC Transportation Worker Identification ‘‘when the bulk CDC is not a part of the maritime 2 Credential Public Law 109–347, 120 Stat. 1884, 1889 transportation activities, it may be that a facility (October 13, 2006). USCG United States Coast Guard could define its MTSA footprint in such a way as 3 See 46 U.S.C. 70105(k)(3). to exclude that area . . . [with the result that] the II. Basis and Purpose, and Regulatory 4 Transportation Worker Identification Credential TWIC reader requirements . . . would not apply in History (TWIC)—Reader Requirements; Final Rule. August that area.’’ See 81 FR 57712 at 57681. 23, 2016, 81 FR 57652. 7 ‘‘TWIC Reader Rule Update,’’ March 31, 2017, 5 Pursuant to the Maritime TWIC Reader Requirements, Delay of Effective available at https:// Date; Notice of Proposed Rulemaking. June 22, mariners.coastguard.dodlive.mil/2017/03/31/ Transportation Security Act of 2002 2018, 83 FR 29067, at 29068. 3312017-twic-reader-rule-update/.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13495

TWIC reader rule.8 The petitioners Identification Credential Accountability ‘‘Discussion of Comments and specifically requested that the Coast Act of 2018,’’ which prohibited the Developments.’’ Guard promulgate a new rule that Coast Guard from implementing the III. Executive Summary would limit the scope of the TWIC TWIC Reader rule until at least 60 days Reader rule to apply only to facilities after it submits the above report to This final rule finalizes and expands that transfer bulk CDC to or from a Congress.’’ 15 on the proposal in the NPRM to delay vessel, and that facilities where bulk the implementation of the TWIC Reader In response to the petition for CDC was otherwise transferred, stored, rule for certain facilities. While the rulemaking and other actions taken by produced, or used be excluded from the NPRM proposed limiting the delay only private parties and Congress, the Coast requirements.9 They also requested that to those facilities that handle CDC in the Coast Guard delay implementation Guard proposed to delay bulk, but do not transfer it to or from a of the TWIC Reader rule immediately, implementation of the TWIC Reader vessel and facilities that receive vessels until we promulgated the new rule.10 rule for some facilities subject to the that carry bulk CDC but do not transfer The Coast Guard denied this petition, electronic TWIC inspection bulk CDC to or from the vessel, this final stating, ‘‘[w]hile you suggest that bulk requirement. In doing so, we took note rule delays implementation of the CDC is only dangerous if it is being of concerns raised in the original electronic TWIC inspection requirement transferred to or from a vessel, nothing analytical works that formed the basis for all that handle bulk CDC and in our analysis of target or attack for the TWIC Reader rule, namely the facilities that receive vessels carrying scenarios would indicate that such a question of ‘‘asset categorization’’ that CDC, including faciltiies that transfer distinction would be relevant.’’ 11 In had been raised by the original bulk CDC to or from a vessel. The TWIC addition to the petition, the parties also Homeland Security Institute (HSI) reader requirement will only go into sued the Coast Guard, seeking to have report on the Coast Guard’s risk effect for facilities that receive large the TWIC Reader rule vacated on the methodology. That report specifically passenger vessels and passenger vessels basis that the plaintiffs had not had ‘‘suggested that further analysis on risk certificated to carry 1000 or more adequate opportunity to comment on grouping of asset categories . . . could passengers and more than 20 TWIC- the rule.12 However, the court dismissed help to ensure that the results were credentialed crewmembers. We based the lawsuit on ripeness grounds, more defensible.’’ 16 The purpose of the this change on comments received, without a decision on the merits of the NPRM was to allow for time to better discussed in further detail below, plaintiffs’ claims.13 assess the risk methodology and showing that the cost of implementing Congress also passed several laws that conduct this refinement. Accordingly, electronic TWIC inspection will be impacted implementation of the TWIC we stated that ‘‘delaying the lower if facility operators can reader program. On December 16, 2016, implementation of the TWIC Reader implement the procedure on an the President signed the bill entitled final rule requirements for certain enterprise-wide level, rather than in a ‘‘Transportation Security Card Program facilities could allow us to develop a piecemeal fashion. We believe that this Assessment.’’ 14 This law required, more precise risk-analysis methodology delay best balances the need for security among other things, the Secretary of that would better identify which of with the economic realities of the Homeland Security to commission a these facilities . . . would benefit from affected population. Facilities that report reviewing the security value of the electronic TWIC inspection receive large passenger vessels will have the TWIC program by: (1) Evaluating the requirements.’’ 17 60 days from the date of publication in extent to which the TWIC program the Federal Register to implement the addresses known or likely security risks We note that the NPRM did not seek TWIC reader requirements. 33 CFR in the maritime and port environments; to delay the rule for all facilities covered 104.263, which covers vessels, is not (2) evaluating the potential for a non- under Risk Group A. In drawing a being amended at this time. Presently, biometric credential alternative; (3) distinction between the facilities that there are no U.S. flagged vessels that identifying the technology, business would be subject to the proposed delay carry bulk CDC, and the one passenger process, and operational impact of the (the non-transfer facilities), and those vessel certificated to carry more than TWIC card and readers in maritime and we believed should comply on the 1000 passengers and more than 20 port environments; (4) assessing the original 2018 start date, we noted that TWIC-credentialed crew members is costs and benefits of the Program, as ‘‘unlike situations where CDC is not already complying with the 2016 TWIC implemented; and (5) evaluating the transferred to or from a vessel, [the reader rule, so providing the 60 day extent to which the Department of categories of facilities covered by the delay is unnecessary. Homeland Security (DHS) has addressed delay NPRM] present a clear risk of a Delaying implementation of TWIC the deficiencies of the TWIC program Transportation Security Incident reader requirements at facilities that previously identified by the (TSI).’’ 18 While we continue to believe handle CDC in bulk while implementing Government Accountability Office this to be the case, as shown in the the requirements at passenger vessels (GAO) and the DHS Office of the discussion below, additional and facilities carries several benefits. Inspector General (OIG). On August 2, information related to the incurred The delay for facilities that handle CDC 2018, the President followed up by expenses of partial implementation of in bulk will provide DHS time to further signing the ‘‘Transportation Worker the rule, as well as the findings of new analyze the results of the studies on TWIC effectiveness, has Congressionally-mandated TWIC 8 See www.regulations.gov, docket number influenced the scope of this final rule. program assessment and continue the USCG–2017–0447. The reasons for changes between the Coast Guard’s study of CDC risk. 9 USCG–2017–0447–0001, p. 22. TWIC Delay NPRM and final rule are Furthermore, implementation at 10 USCG–2017–0447–0001, p. 22. discussed below in Section IV, passenger vessel facilities will improve 11 USCG–2017–0447–0005, p. 2. the security at these public-facing 12 International Liquid Terminals Association v. United States Department of Homeland Security, 15 Public Law 115–230. facilities, which handle 60-plus million 2018 WL 8667001 (09/18/2018). 16 83 FR at 29070. passengers per year. Finally, it will 13 Id. 17 83 FR at 29072. allow facilities that handle CDC in bulk 14 Public Law 114–278. 18 83 FR at 29073. operators more time to plan their

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13496 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

implementation of electronic TWIC dollars, discounted back to 2016. For means, or the facility produces, stores, inspection requirements, an opportunity the purpose of this economic analysis, or uses it in its processes, it should not to assess new, more flexible reader we use a 10-year period of analysis in be described as ‘‘handling’’ bulk CDC. solutions and technology, and the order to properly compare the costs of The primary source of this argument opportunity to implement a solution(s) this final rule and the TWIC reader rule, is an unrelated requirement in 33 CFR on a larger, enterprise-wide scale, where we also estimated the costs and 105.295, which sets forth additional improving efficiency. benefits using a 10-year period of security requirements for ‘‘CDC We note that because DHS only analysis. Facilities.’’ This requirement was received the results of the TWIC established in 2003, and, while the term ‘‘comprehensive security assessment’’ IV. Discussion of Comments and ‘‘CDC Facility’’ was not defined in (titled ‘‘The Risk-Mitigation Value of the Developments regulation, a subsequently-issued policy Transportation Worker Identification In response to the publication of the document from the Policy Advisory Credential: A Comprehensive Security NPRM, the Coast Guard received 13 Council (PAC 20–04) stated that ‘‘in Assessment of the TWIC Program’’) in public comments. All commenters order for a facility to classify as a CDC early August 2019, and the Coast Guard supported the Coast Guard’s proposal to Facility, a vessel-to-facility interface is still analyzing the assessment, this delay implementation of the TWIC must occur, or be capable of occurring, final rule is only one step in our further reader rule, and most urged the Coast and involve the transfer of CDC’s in evaluation of the TWIC reader Guard to expand that delay in bulk.’’ 22 PAC 20–04 also stated that requirements. The Congressional implementation to the class of facility facilities receiving CDC from entities requirement to implement electronic represented by the commenter. other than vessels, such as rail cars and TWIC inspection requirements in 46 Commenters also made a wide variety of tanker trucks, would not be considered U.S.C. 70105 still stands, and while we statements about their understanding of CDC Facilities, but that the Facility still believe that electronic validation of the electronic TWIC inspection Security Plan (FSP) for these facilities TWIC cards provides valuable security rulemaking documents demonstrating ‘‘must address the fact that they handle benefits, we also believe the substantial confusion about numerous such cargoes.’’ 23 This explanation of the implementation of the electronic TWIC aspects of the TWIC reader rule, which meaning of ‘‘CDC Facility’’ contrasted inspection requirement will be are addressed extensively below. markedly with the elucidation of the improved by additional data and further Finally, commenters provided phrase ‘‘facilities that handle Certain evaluation. additional information relating to the Dangerous Cargoes in bulk’’ provided in As a result of this delay, regulated costs and implementation concerns the 2016 TWIC Reader final rule. In that facilities and vessels should not infer surrounding the electronic TWIC document, we stated that, in the that readers, access control systems, or inspection requirement that the Coast situation where a facility stored or used other electronic inspection solutions Guard has, where applicable, integrated CDC, or the facility was used to transfer provide no security value. While certain into its analysis. CDC in bulk through rail or other non- reader requirements are delayed, In this document, the Coast Guard has maritime means, ‘‘such a facility would facilities or vessels may choose to grouped together issues from various be considered to ‘handle CDC in bulk’ incorporate such inspection solutions commenters into five broad categories, and would be classified as Risk Group into their Facility or Vessel Security as laid out below. When possible, we A.’’ 24 We went on to say that ‘‘this is Plans. Specifically, the use of the have attempted to identify the specific because the bulk CDC would be on the electronic inspection solutions and the comment to which we are responding. premises of a MTSA-regulated facility, TWIC Canceled Card List (CCL) may Where applicable, we have included a and thus the facility’s access control enhance security and minimize the risk citation to the comment and page of a system would need to be used to of an ineligible transportation worker statement to which we are responding. mitigate the risk of a TSI.’’ 25 entering a secure area. While the terms ‘‘CDC Facilities’’ and A. Confusion Relating to the Difference Overall, we estimate that delaying the ‘‘facilities that handle CDC in bulk’’ Between ‘‘CDC Facilities’’ and implementation of the TWIC Reader sound similar, they are not identical, ‘‘Facilities That Handle CDC in Bulk’’ rule for the estimated 370 facilities that and the Coast Guard did not intend to handle CDC in bulk will result in cost Many commenters expressed conflate the two terms or use them savings to both industry and the confusion about the scope of the interchangeably. The Coast Guard never government of $23.74 million population affected by the TWIC reader used the term ‘‘CDC Facilities’’ in any (discounted at 7 percent) over a 10-year rule, specifically those that are required of the TWIC Reader rulemaking period of analysis, and an annualized to implement electronic TWIC documents, and has been using cost savings of $3.38 million inspection because they meet the consistent language since the (discounted at 7 percent).19 20 Using a requirements in title 33 Code of Federal publication of the Advance Notice of perpetual period of analysis, we Regulations (CFR) 105.253(a)(1) for Proposed Rulemaking (ANPRM) in 2009 estimated the total annualized cost ‘‘facilities that handle Certain (74 FR 13360). We also note substantial savings to industry and the government Dangerous Cargoes (CDC) in bulk.’’ 21 differences in the rationales for the of the rule to be $1.53 million in 2016 Those commenters argued that they different requirements associated with believe this phrase should only attach to the two terms. Various elements in 33 19 With a 3-percent discount rate, we estimate a facilities where bulk CDC is transferred CFR 105.295 specifically relate to total cost savings of $18.29 million and an from a vessel to facility or vice versa. maritime-specific issues, such as annualized cost savings of $2.14 million. These individuals stated that, if a searching waterfront areas for dangerous 20 At the time of analysis, the Coast Guard did not have a final draft HSOAC assessment, and therefore facility received bulk CDC by other we did not incorporate any cost estimates from that 22 Available at Homeport website, https:// report into our analysis, as we were unable to 21 While we note that 33 CFR 105.253(a) also homeportr.uscg.mil/Lists/Content/ review or validate those cost estimates for our RA. contains the phrase ‘‘[f]acilities that . . . receive DispForm.aspx?ID=2784. See Policy Advisory Further, as the HSOAC assessment was published vessels carrying CDC in bulk,’’ that second phrase (PAC) Doucument Registry document. after the publication of the NPRM, the public would is not relevant to this discussion of the 23 PAC 20–04, ‘‘Scenario D.’’ not have had the opportunity to review and interpretation of ‘‘Facilities than handle CDC in 24 81 FR at 57681. comment on those cost estimates. bulk.’’ 25 81 FR at 57681.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13497

devices 26 and a requirement to release notcomment on the rationale provided entry into a secure area of the facility, cargo only in the presence of the in that document. all persons must pass an electronic Facility Security Officer (FSO) or One commenter stated that ‘‘in the TWIC inspection before being granted designated representative,27 and form proposed versions of the reader rule, unescorted access to secure areas of the the basis for a maritime-based Risk Group A included . . . those that facility.’’ The definition of ‘‘secure area’’ interpretation of the applicability of that exchange [CDC] between the facility and reads, in part, ‘‘the area . . . at a facility section. Such requirements would not a vessel.’’ 33 The commenter provided . . . over which the owner/operator has make sense for a facility that did not various pinpoint citations with this implemented security measures for transfer bulk CDC across a dock. statement, which we examined. The access control in accordance with a Conversely, the attack scenarios that first citation, from the 2009 ANPRM, Coast Guard approved security plan.’’ electronic TWIC identification is uses the phrase ‘‘Facilities that handle This was described at length in the designed to mitigate are all exclusively CDC in bulk’’ 34 to describe the facilities TWIC Reader final rule, and has been land-based, specifically limited attacks that we expected would be included in clear for some time, such as when stated from truck bombs, passersby, and (land- Risk Group A, without any indication by the GAO in 2011,37 ‘‘[f]or most based) assault squads,28 and there is no that we meant anything other than the maritime facilities, the secure area is reason a maritime nexus should be plain meaning of those words. The generally any place inside the outer- assumed. second citation, from the NPRM (78 FR most access control point.’’ Nonetheless, 17785–86), is unclear. The section of the one commenter asserted that it had Despite the Coast Guard’s use of document that spans these two pages, based its planning on ‘‘the assumption distinct language and an exclusively entitled ‘‘Summary of the Major that electronic TWIC inspections will land-based rationale in the NPRM, many Provisions of the TWIC Reader only be required in those locations commenters asserted or implied their Advanced Notice of Proposed where bulk CDC is actually transferred belief that the terms were Rulemaking and This NPRM,’’ mainly to or from a vessel.’’ Based on that interchangeable, and the Coast Guard’s discusses the decision to not propose assumption, the commenter suggested interpretation of the term ‘‘facilities that the ANPRM’s suggestion of separate that its current planning processes handle CDC in bulk’’ in the final rule, requirements for Risk Group B vessels could lead to unforeseen costs if the therefore, contradicted its guidance in and facilities. With regard to the issue Coast Guard does not change its PAC 20–04. One commenter submitted of Risk Group A facilities, the only regulations to meet those expectations. a copy of PAC 20–04 with scenarios in relevant text we could find is in Table We note that the TWIC Delay NPRM did which a facilitiy would not be classified ES–1, which summarizes the proposal not propose or contemplate the as a CDC facility highlighted, and for Risk Group A facilities using commenter’s theory that facilities that statement ‘‘here are several reasons why identical language to that described in handle CDC and transfer it to or from a 29 there are several contradictions.’’ One the ANPRM, ‘‘Facilities that handle CDC vessel would only be required to commenter stated that ‘‘the scope of the in bulk.’’ The third citation the implement electronic TWIC inspection Final Rule was expanded beyond what commenter provides, 78 FR at 17811, in the ‘‘maritime nexus’’ areas of their was initially proposed and departed does not appear to contain any relevant facility. If such a transfer facility also from established Coast Guard policy textual information, containing only handled CDC in other parts of the 30 (PAC 20–04),’’ while another discussions of the HSI report relied facility, under the proposed TWIC Delay requested that the Coast Guard revise upon in the rulemaking and information rule, it would still be required to the scope of the final rule to make it on additional data sources used in the implement electronic TWIC inspection consistent with PAC 20–04. Yet another rulemaking. While the commenter goes ‘‘at each entry to a secure area’’ commenter stated that applying on to state that, ‘‘in the final rule, other according to the regulatory text. electronic TWIC inspection facilities were included, specifically requirements to ‘‘facilities without a those that contain CDCs and those that This confusion, and the potential maritime nexus or where there is no transfer CDCs only via non-maritime impact, is also discussed in the August transfer of CDC over a dock was means, such as by truck, rail, or 2019 ‘‘comprehensive security unanticipated and unusual based on pipeline,’’ 35 the commenter’s citations assessment’’ mandated by Public Law historical actions taken by the Coast provide no basis to conclude any 114–278, titled The Risk-Mitigation Guard,’’ 31 and while the commenter did differences between the language in the Value of the Transportation Worker not elaborate on what those ‘‘historical ANPRM, NPRM, and final rule or any Identification Credential: A actions’’ were, we assume they are basis to conclude that the same phrasing Comprehensive Security Assessment of referring to the issuance of PAC 20–04. used in each of the documents referred the TWIC Program. The authors of the A fifth commenter referred to the to anything other than the plain assessment, the Homeland Security application of the term ‘‘facilities that meaning of the words. Operational Analysis Center (HSOAC), handle CDC in bulk’’ to include One commenter expressed confusion anticipated that this confusion could facilities that don’t transfer CDC over a regarding the applicability of the ‘‘potentially increase the number of dock as ‘‘a mistake in the August 23, electronic TWIC inspection facilities . . . subject to the TWIC 2016 publication,’’ 32 but did requirement, specifically in regard to Reader Rule to an even larger how they would implement the population of facilities.’’ HSOAC estimates that up to three times as many 26 33 CFR 105.295(a)(4). requirement if they determined they 36 27 33 CFR 105.295(b)(1). were a Risk Group A facility. The facilities as estimated in the TWIC 28 See 81 FR at 57701. regulatory text states that ‘‘prior to each Reader final rule may fall under the 29 USCG–2017–0711–0003–3. broader definition of a facility that 30 USCG–2017–0711–0012, p. 2. 33 USCG–2017–0711–0004, p. 2. 31 USCG–2017–0711–0005, p. 2–3. We note the 34 See subsection E, ‘‘Facility and Vessel Risk 37 GAO–11–657, ‘‘Transportation Worker commenter included a footnote to PAC 20–04 Groups,’’ expected text for Risk Group A Facilities. Identification Credential: Internal Control (footnote 6), which repeated and emphasized the 35 USCG–2017–0711–0004, p. 2, including a Weaknesses Need to Be Corrected to Help Achieve definition of ‘‘CDC Facilities.’’ general citation to the 2013 TWIC Reader final rule. Security Objectives,’’ available at https:// 32 USCG–2017–0711–0014, p. 1. 36 USCG–2017–0711–0015, at p. 1–2. www.gao.gov.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13498 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

handles CDC in bulk, driving the in order for the Coast Guard to reassess the three identified scenarios, asserting estimate from 525 facilities to 1,500.38 the risk anaylsis methodology for that ‘‘an individual or group intent on Based on the comments received, and electronic TWIC inspection, questions executing such an attack would not be the information presented in the about the effectiveness of electronic deterred simply because the targeted HSOAC assessment, we recognize the TWIC inspection, and the TWIC facility requires electronic TWIC similarity between the phrases ‘‘CDC program generally, have been raised by inspections rather than visual TWIC facilities’’ and ‘‘Facilities that handle various entities over the years. In the inspections.’’ (emphasis in original) 45 CDC in bulk,’’ which contributed to comments to this rulemaking, several We disagree that electronic TWIC some confusion among commenters. commenters raised concerns about the inspection would offer no additional While we do not believe that the effectiveness of TWIC, and we have security value over visual inspection in confusion affects the purpose of responded to and contextualized those such a case. Visual inspection cannot electronic TWIC inspection or should be comments here. detect if a card has been revoked, the cause for delaying implementation In the TWIC Reader NPRM and final cancelled, or stolen. It is also less of the rule as a whole, we do understand rule, the Coast Guard set forth the effective at determining if a card is it may have affected the ability of some security rationale for the electronic counterfeit or if the person presenting facility operators to effectively comment TWIC inspection procedure, and the card is the person to whom the card on the full costs of the rule. explained how it could help mitigate was issued. In short, it would be likelier Accordingly, we are expanding on the specific terrorist attacks and lessen the for an adversary to gain unescorted proposal in the NPRM to delay the possibility of a TSI. The Coast Guard access to the target—the secure area of implementation of the TWIC Reader emphasized three particular ‘‘attack the facility—if the facility relied only on rule at facilities that handle CDC in bulk scenarios’’—an attack by a truck bomb, visual TWIC inspection. The commenter and transfer such cargoes from or to a a terrorist assault team, and a passerby/ went on to assert that ‘‘terrorists vessel. passenger explosive device situation. generally use brute force when attacking These were considered the ‘‘attack a target—particularly when carrying out B. Concerns Relating to the Effectiveness scenarios that are most likely to be the types of attacks identified by [the of the Electronic TWIC Inspection mitigated by the . . . enhanced access Coast Guard’s Maritime Security Risk Requirement control afforded by TWIC readers, as Analysis Model] MSRAM, . . . or blow Since the TWIC Reader rule was they require would-be attackers gaining up a checkpoint or other barrier rather published Congress and stakeholders access to the target in question . . . to than stop to use false credentials to gain have questioned the extent to which inflict maximum damage.’’ 41 Similarly, access.’’ (emphasis in original).46 We electronic TWIC inspection, compared in the final rule, we noted that we agree that the inability to infiltrate a to visual TWIC inspection, improves ‘‘limited our consideration to attack facility could cause a terrorist group to security and mitigates the possibility of scenarios that require physical employ additional means to initiate a a TSI. As described above, the TWIC proximity to the intended target and for full-scale attack on a facility, if Accountability Act of 2018 delayed which access control would affect the electronic inspection were used. implementation of the TWIC Reader ability to conduct an attack.’’ 42 In the However, we would consider this an rule until after an assessment of its response to comments during that issue of electronic TWIC inspection effectiveness.39 The HSOAC assessment rulemaking process, we acknowledged ‘‘mitigating’’ an attack, as the latter ‘‘review[ed] the security value of the that there were other ways to attack scenarios may be more difficult to [TWIC] program,’’ including ‘‘evaluating vessels and facilities (for example, by mount, easier to detect, provide more the extent to which the program . . . secreting an explosive device in cargo) time for responders to arrive, or give addresses known or likely security risks that would not be mitigated by potential targets advance warning of an in the maritime and port environments’’ electronic TWIC inspection. We noted attack and time to clear the targeted and the extent to which the that ‘‘[f]or this reason, our analysis in area, among many other considerations. ‘‘deficiencies in the program’’ identified this final rule focuses on threats that We also note that the measures taken to by the GAO and DHS OIG have been could be prevented or mitigated through mitigate these sorts of brute-force addressed.40 The results of this the use of electronic TWIC attacks, such as bollards, fences, or assessment, which are discussed in inspection.’’ 43 other barriers, are generally ineffective more detail below and are being Many commenters raised questions at preventing the infiltrations mitigated considered by the Coast Guard in the about the efficacy of the TWIC program by electronic TWIC inspection. The two decision to delay the TWIC reader in preventing attacks. One commenter types of security measures are requirements, and will be taken in to stated that a TWIC reader would not complementary, not mutually exclusive. account in our consideration of follow- prevent the three identified attack Several commenters 47 raised up actions to be taken during the delay scenarios, and that, if it did, ‘‘we should concerns that the Coast Guard had not period provided by this final rule. While be using them in Syria and Iraq.’’ 44 adequately addressed concerns raised this TWIC Reader delay was proposed While we cannot speak on the particular by the GAO in its 2013 report on the security measures used in overseas TWIC program.48 While the 2013 GAO 38 Assessment of the Risk Mitigation Value of the military bases, we do note that many report raised some concerns about the Transportation Worker Identification Credential,’’ U.S. government facilities around the TWIC program, we do not believe that HSOAC report at p. 124 (available in the docket at world indeed do use some form of report exposed specific problems with www.regulations.gov under docket number USCG– the electronic TWIC inspection 2017–0447). HSOAC derives this estimate by access control measures for security including Risk Group A facilities; non-risk Group purposes. requirement. Instead, it noted concerns A (non-exempt) bulk liquid or bulk oil facilities; Another commenter questioned the and non-Risk Group A (non-exempt) facilities utility of electronic TWIC inspection in 45 USCG–2017–0711–0007, p. 7. receiving or transferring hazardous, explosive, or 46 USCG–2017–0711–0007, p. 7. radioactive materials. 47 See USCG–2017–0711–0006, 0007, and 0012. 39 41 78 FR at 17822. Public Law 115–230, 132 Stat. 1631 (August 2, 48 GAO–13–198, ‘‘Transportation Worker 42 2018). 81 FR at 57656. Identification Credential—Card Reader Pilot Results 40 Public Law 114–278, Sec. 1(b)(C)(i) and (v), 43 81 FR at 57656. Are Unreliable; Security Benefits Need to Be December 16, 2016. 44 USCG–2017–0711–0003, attachment 3, p. 2. Reassessed,’’ available at http://www.gao.gov.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13499

about the TWIC program that are Guard promulgated the final rule.53 The less harmful attacks.’’ 56 Furthermore, outside the scope of the electronic TWIC HSI study, on the other hand, expressed the assessment found that the TWIC inspection requirement (e.g., unreliable concerns about the use of asset card reader could ‘‘increase the cards and readers used in the TWIC categorization and, separately, the likelihood that invalid TWIC cards are pilot program, or the ability of GAO mechanism by which the Coast Guard detected, and biometrics provide a operatives to obtain genuine TWIC cards integrated the ‘‘TWIC utility’’ factor in robust mechanism for identity at enrollment centers using fraudulent determining risk assessments to inform verification.’’ 57 Moreover, some existing means), and noted that the Coast Guard asset categorization.54 Those topics, users have found that the use of had not conducted an effectiveness while important, are not the same thing biometric, electronic readers can be both assessment of the TWIC program as as effectiveness. Furthermore, we cost saving and security enhancing. 49 GAO had recommended in 2011. disagree with the commenter’s assertion However, the assessment reiterated that Many of the GAO findings, for example, that promulgating the rule despite the the value of TWIC is directly related to noting that ‘‘the use of TWIC with concerns in these reports renders the the quality of security that a vessel or readers would not stop terrorists from rule legally invalid. We note that the facility has overall, including having detonating a truck at the perimeter of a HSI report, despite expressing concerns, other security mechanisms in place, facility, . . . or obtaining a TWIC card did validate the Coast Guard’s risk such as security guards, PACS, and using fraudulent documents as we did analysis methodology and endorse the deployable security barriers. Ultimately, through covert means’’ are in fact asset groupings the Coast Guard the assessment found that adversaries identical to the Coast Guard’s analysis suggested. In addressing the public are capable of gaining unauthorized of these same facts, where we noted that comments on the TWIC rule, written access via other means and that ‘‘threats electronic TWIC inspection does not after the GAO report was released, we TWIC is best intended to mitigate are prevent every conceivable security noted that the overwhelming majority of . . . not the most pressing.’’ 58 threat.50 Furthermore, we note that the the commenters supported the Coast Guard and TSA addressed many electronic TWIC inspection The cost effectiveness analysis on the of the issues that GAO raised, such as requirements in general based on the electronic inspection requirements in questions about the appropriateness of a security analysis conducted by the Coast the TWIC Reader rule provided by the single TWIC credential versus state and Guard, the lack of a generalized HSOAC assessment was less favorable, local credentials, improved fraud ‘‘effectiveness’’ study notwithstanding. stating that ‘‘one would be hard-pressed detection techniques, the establishment While the issues raised by stakeholders to state the benefits of TWIC reader rule of internal and quality controls, or data after the final rule was promulgated outweigh the costs.’’ 59 In making this collection questions regarding the TWIC merited consideration regarding determination, the assessment examined program, programmatically, and they no implementation of the electronic TWIC the Coast Guard’s methodology for longer presented an issue by the time inspection requirement, we did not then determining the costs and benefits in we issued the TWIC Reader final rule. and do not now believe that they the regulatory analysis of the 2016 final Several commenters asserted that the invalidate the fundamental principles rule. HSOAC then conducted their own Coast Guard’s failure to heed GAO’s upon which Congress and the Coast analysis using the same methodology recommendation to perform an Guard based the analysis. with new cost data, when available. The effectiveness study render the final rule Nonetheless, as recommended by assessment found that the Coast Guard flawed. One commenter stated that ‘‘the GAO, and mandated by Congress, DHS underestimated the costs of the Coast Guard’s insistence on has provided the HSOAC assessment of programs and overestimated the benefits promulgating a TWIC Reader Rule while the security value of the TWIC program. by using the highest maximum refusing to substantively respond to the While many of the assessment’s consequence scores. The ‘‘break-even’’ GAO’s and HSI’s 51 critiques was conclusions concern areas outside of the analysis used by the Coast Guard to arbitrary and capricious, and was particular security effectiveness of the determine the benefits of the rule was contrary to the obvious intent of the electronic TWIC inspection found to be appropriate, because it is SAFE Port Act that the rule be based on requirement, the assessment found that well-established in the cost-benefit empirical cost-benefit data. Although there were some security benefits to literature, and has been widely used in the Coast Guard admits TWIC reader electronic inspection of TWIC cards and previous DHS rulemaking projects. utility requires further study . . . it that readers may be a beneficial However, the assessment found the nevertheless insists on partial investment for facilities and vessels. Coast Guard overestimated the benefits implementation.’’ 52 Specifically, the assessment found that by using the average maximum We believe the commenter here has ‘‘the TWIC program is strongest in consequence of a successful terrorist conflated several ideas. First, we note reducing the risk presented by attack, as provided by MSRAM, as the that while the GAO report stated that an individuals who are known or ‘‘worst case’’ scenario in the analysis.60 effectiveness study should be suspected terrorists and who seek to The assessment suggests the use of a performed, the report was directed at conduct an attack on a maritime facility range of consequence scores or the Congress, which declined to act on the that would require persistent insider average consequence score would be recommendation until after the Coast access via possession of a TWIC more appropriate.61 However, as noted credential.’’ 55 The assessment in the report, the use of MSRAM data is 49 GAO 13–198, p. 41. determined that ‘‘TWIC does impose limited due to classification restrictions 50 GAO 13–198, p. 41. costs on the adversary,’’ and ‘‘likely on the data, and in the 2016 analysis, 51 This refers to report entitled ‘‘Independent contributes to pushing threatening Verification and Validation of Development of actors toward simpler and potentially 56 Id. Transportation Worker Identification Credential 57 (TWIC) Reader Requirements,’’ Homeland Security Id. Institute, October 21, 2008 (the ‘‘HSI Report’’). A 53 GAO 13–198 at 43, ‘‘Matter for Congressional 58 Id. a. xviii. redacted version of this document is available in Consideration.’’ 59 Id. the docket. 54 See HSI study at 26. 60 Id. at 133. 52 USCG–2017–0771–0006 at 2–3. 55 HSOAC report at xvii. 61 Id. at. 135.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13500 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

the Coast Guard was only able to use the methodology for electronic TWIC long-term investments to protect maximum consequence for this reason. inspection as the chief reason for facilities’ threat and vulnerability The assessment also provided several proposing a partial delay of the TWIC conditions,’’ and that a partial delay suggestions and alternatives to the Reader final rule. Specifically, we will ‘‘continue to create regulatory existing program to improve the cost- highlighted concerns about ‘‘asset uncertainty.’’ 68 A third commenter effectiveness, including limiting the categorization,’’ the practice of grouping asserted that ‘‘Coast Guard personnel facilities subject to the regulation by and analyzing facilities by class, as a offered that delays for implementation using a narrower definition, or using basis for the application of the for the Final Rule were likely,’’ and that different readers (such as portable electronic TWIC inspection ‘‘it was expected that any delay for the readers that can be used intermittently, requirement. For example, the Coast implementation would apply to all access control systems or other Guard treats all facilities that ‘‘handle facilities.’’ 69 inspection solutions). Despite the CDC in bulk’’ as being in the same class, We take seriously concerns that Coast reservations regarding the cost regardless of the geographical location Guard statements and actions taken effectiveness and benefits surrounding of the facility (e.g., whether it is near a subsequent to the issuance of the final the TWIC readers, the assessment found large population center) or the specific rule, including the passage of legislation that approximately 50 percent of types and quantities of the bulk CDC that postponed the implementation of facilities HSOAC visited and examined handled at the facility (e.g., whether it the rule, could create regulatory have implemented electronic inspection is a few thousand gallons of propane or uncertainty. One commenter noted that for TWIC, either in a PACS or portable several thousand tons of chlorine). ‘‘the regulated community and reader, and that in some cases those While questions about how the Coast equipment manufacturers had reason to PACS also verify identity using Guard would consider particular believe the compliance deadline would biometric systems.62 Also, nearly 20 situations where the presence of bulk be extended and the scope of the rule percent of facilities sampled by the CDC did not pose a threat above a possibly narrowed,’’ leading to assessment used more technologically particular threshold were addressed in ‘‘equipment manufacturers [delaying] sophisticated biometric readers. During the TWIC Reader final rule, concerns production until there is more certainty this delay period, USCG will be looking raised after its publication caused us to on the rule.’’ 70 Similarly, one at various means of implementing the re-evaluate whether the risk analysis commenter noted that compliance with use of TWICs at maritime facilities methodology was adequate or the reader rule would take significant including more efficient and cost satisfactory.65 Furthermore, we began preparation, including ‘‘restructuring effective electronic validation modes the process of reconsidering whether access points, training security and methods. asset categorization was an appropriate operators, [and] testing the security The facilities interviewed in the means by which to evaluate the risk interplay between the TWIC readers and HSOAC assessment that effectively potential of facilities, as opposed to a our existing access controls,’’ 71 which it integrated readers or access control more individualized methodology that had not begun to implement due to solutions into operations have had incorporates factors such as local belief that the rule would be postponed. 63 largely positive experiences. population, environmental Several commenters expressed Perceptions were mixed on the degree of considerations, and similar factors. The concern about additional costs enhanced security that the readers possibility of inadvertently capturing associated with partial implementation added, with over half of the facilities low-risk facilities in the mix of Risk of the electronic TWIC inspection interviewed finding some benefit. Those Group A facilities was the reason we requirement. In addition to concerns facilities found specifically that ‘‘if the proposed to delay the TWIC Reader rule regarding delayed production readers are working properly, they are for ‘‘non-transfer’’ facilities. However, mentioned above,72 ‘‘manufacturers an effective tool and provide an because ‘‘transfer’’ facilities and remain concerned that they lack the additional level of comfort and passenger facilities are high risk due to required lead time to sufficiently plan 64 security.’’ While the HSOAC the targets inside the facilities and install new equipment, assessment favors a system approach to themselves, irrespective of exogenous infrastructure, software, and to train risk-mitigation and does not advocate considerations, we declined to propose new employees,’’ 73 and asserted that the use of TWIC as a sole means of delaying the electronic TWIC inspection partial delay of the final rule would security for vessels and facilities, the requirements for those classes of create ‘‘logistical and financial Coast Guard is encouraged by positive facilities.66 challenges for facilities that are already feedback provided by those facilities Several commenters responded in compliance with the TWIC visual that preemptively use TWIC readers, negatively to the Coast Guard’s proposal inspection requirements.’’ 74 These particularly the satisfaction with the to implement the electronic TWIC sentiments are echoed in the TWIC program as a whole. The Coast Guard is inspection requirement in only some HSOAC assessment, where some further analyzing the suggestions and Risk Group A facilities. One commenter interviewees from Risk Group A comments provided in the assessment, urged the Coast Guard to delay the facilities have experienced increased and determining if modifications should requirement for all Risk Group A costs and have found the number of be made to the program during the delay facilities ‘‘rather than work vendors shrinking.75 period. piecemeal.’’ 67 Another commenter One commenter suggested that an C. Concerns Regarding Partial asserted that a delay for all facilities is option set forth in the TWIC rulemaking Implementation of the TWIC Reader necessary because ‘‘manufacturers need Rule regulatory certainty to make 68 USCG–2017–0711–0012, p. 1. appropriate, economically justifiable 69 USCG–2017–0711–0005, p. 2. In the delay NPRM, the Coast Guard 70 USCG–2017–0711–0013, p. 2. cited concerns about the risk analysis 65 See, e.g, 78 FR 17782 at 17811, discussing the 71 USCG–2017–0711–0005, p. 6. availability of waivers in situations where minimal 72 USCG–2017–0711–0013, p. 2. 62 Id. at 91. risk was determined. 73 USCG–2017–0711–0012, p. 2. 63 Id. at 99. 66 See 83 FR 29067 at 29073. 74 Id. 64 Id. at 96. 67 USCG–2017–0711–0004, p. 1. 75 HSOAC report at 98.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13501

to limit electronic TWIC inspection to handled by non-maritime means at the the phrase ‘‘and receive vessels carrying discrete areas of a facility where it facility does not require electronic CDC’’ in the text of the final rule added handles bulk CDC—originally intended TWIC inspections, then the facility will additional regulated facilities, which to be an option designed to reduce have wasted significant time, effort, were not included in the RA. We costs—could end up creating problems resources, and money.’’ 78 While the address each of these issues below. We if the delay is limited to CDC transfer Coast Guard has not ever proposed note that specific comments relating to facilities only. The commenter laid out limiting electronic TWIC inspection the Coast Guard’s economic analysis are two scenarios to show how this could criteria to the maritime area, we realize addressed below in Section IV. G., happen, as described below. that if we were to change the regulation ‘‘Comments on the Regulatory In the first scenario, the facility in that way after promulgating a wider Analysis.’’ expends resources to isolate the discrete regulation, it could result in significant One major issue raised by bulk CDC area to the maritime transfer unnecessary expenditures. While the commenters concerned the number of area. The commenter writes that ‘‘[i]f commenter’s analysis mischaracterizes facilities subject to the electronic TWIC after the three-year delay period, the the proposal in the TWIC Delay NPRM, inspection requirements, specifically USCG determines the bulk CDC handled we believe this demonstrates that there the idea that the Coast Guard had by non-maritime means in many remains significant confusion regarding underestimated the number of facilities locations throughout the facility does the scope of the rule. This is a valid that would be characterized as Risk require electronic TWIC inspections, point and one that we have considered Group A under the new regulations. In then the facility will have no choice but in promulgating this delay. the 2013 TWIC Reader NPRM, the Coast to expand electronic TWIC inspections Guard estimated that 532 facilities to its perimeter fence-line (which also D. Problems Estimating the Total Cost of would be classified as Risk Group A,80 defines its secure area). In this Implementation of the Electronic TWIC a number that was modified in the 2016 [scenario], the time effort, resources, Inspection Requirement final rule due to the exclusion of 7 barge and money spent now isolating the In the TWIC Reader rulemaking, the fleeting facilities.81 In the TWIC Delay discrete area(s) where bulk CDC is Coast Guard limited the electronic NPRM, we broke down the nature of transferred to or from a vessel will have TWIC inspection to high-risk facilities these 525 facilities, indicating that they been wasted.’’ (emphasis in original) 76 for purposes of producing an efficient consisted of 122 ‘‘non-transfer’’ This commenter is confusing the 2016 regulatory scheme. While we facilities, as well as 403 passenger and final rule, and the proposed changes in acknowledged that electronic TWIC ‘‘transfer’’ facilities combined.82 One the TWIC Delay NPRM. The NPRM did inspection would improve security at all commenter stated ‘‘neither the [2013 not propose to limit electronic TWIC MTSA-regulated facilities, we TWIC Reader NPRM RA] nor the [2016 inspections to the areas of the facility concluded that, for many facilities, the TWIC Reader final rule RA] ever where bulk CDC is transferred to or from cost of implementing such measures discusses this class of facilities.’’ 83 This a vessel. Instead, it proposed to limit the would be too high relative to the commenter is correct: both the TWIC requirement to ‘‘[f]acilities that handle security benefits achieved. For that Reader NPRM and final rule applied the Certain Dangerous Cargoes (CDC) in reason, we conducted extensive analysis requirement to ‘‘facilities that handle bulk and transfer such cargoes from or as to which types of facilities posed the CDC in bulk,’’ and did not draw a to a vessel.’’ 77 Such facilities would still greatest threat to persons and key distinction between those that transfer it have been subject to the general infrastructure targets, as well as which to/from vessels and those that do not, requirement that they conduct types of facilities would reap the and so never separated the types of electronic TWIC inspection pursuant to greatest benefits from the proposed facilities for the purposes of economic 33 CFR 101.535(b), which requires countermeasures. We determined that analysis. Because the TWIC Delay electronic TWIC inspection before being applying electronic TWIC inspection NPRM was the first instance in which granted unescorted access to secure requirements only to Risk Group A the Coast Guard considered different areas of the facility. The option to facilities provided the most efficient requirements for transfer and non- isolate electronic TWIC inspection to security measures. The TWIC Reader transfer facilities, we included a discrete areas of the facility where bulk rule final regulatory analysis (RA) separate count of the non-transfer CDC is handled still required electronic estimated that the rule would require facilities. TWIC inspection at all locations within compliance actions by 525 facilities and The commenter also suggested that the applicable facilities where CDC is 1 vessel, for a total cost of $153.8 the Coast Guard had dramatically handled, regardless of whether that was million (discounted at 7-percent) over a underestimated the number of non- the location it was being transferred to 10-year period.79 transfer facilities. The commenter states, or from a vessel. There was never a In response to the TWIC Delay NPRM, ‘‘it is likely that approximately 525 (or proposal to limit the requirement to several commenters challenged the more) facilities handle bulk CDC by maritime transfer areas, and, thus, we underlying assumptions that the Coast non-maritime means.’’ It is unclear if would not expect this scenario to occur. Guard used in developing this figure. the commenter is suggesting that there In the second scenario, the Commenters first argued that the Coast are a total of 525 facilities that handle commenter imagines that ‘‘rather than Guard’s analysis undercounted the bulk CDC by non-maritime means (in isolating the discrete area(s) where bulk number of facilities by including both line with our estimates), or if there are CDC is transferred to or from a vessel, transfer facilities and non-transfer 525 facilities that handle bulk CDC by a facility chooses to conduct electronic facilities in its total estimate of 525 non-maritime means exclusively, which TWIC inspections of all personnel estimated facilities. Secondly, would exceed the Coast Guard’s seeking unescorted access into its secure commenters argued that the inclusion of area (i.e., at the perimeter fence line. 80 78 FR 17782 at 17787, Table ES–2. . . . If after the three-year delay period, 78 USCG–2017–0711–0007, p. 6–7. 81 81 FR 57652 at 57654, Table 1. 82 the USCG determines the bulk CDC 79 See Transportation Worker Identification See 83 FR at 29074. We note that the NPRM Credential (TWIC) Reader Requirements— did not specifically delineate the breakdown among Regulatory Analysis and Final Regulatory the 403 facilities that would not have been delayed 76 USCG–2017–0711–0007, p. 6. Flexibility Analysis, November 2015, p. 8, available under the proposal. 77 83 FR at 29081. at docket # USCG–2007–28915–0231. 83 USCG–2017–0711–0007, p. 9.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13502 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

estimates. The commenter also cited the the original proposed text of Coast Guard disagrees, and notes the 2017 Petition for Rulemaking,84 noting, § 105.253(a). 2016 TWIC Reader rule methodology ‘‘the Petition estimated that there are Because the Coast Guard did not explicitly accounts for these situations. closer to 1,500 Non-Transfer Facilities consider the new language to add new requirements to the rule, we did not list E. Use of Electronic TWIC Inspection at nationwide, most of which handle bulk Passenger Facilities and Vessels CDC by non-maritime means.’’ 85 (The ‘‘facilities that receive vessels carrying use of the phrase ‘‘most of which’’ does CDC in bulk’’ as a separate category of Unlike facilities that handle CDC in appear to imply that the number of facilities in the regulatory text, nor did bulk, the Coast Guard did not propose facilities is a total count, in line with we consider that it would change the to delay the final rule for any passenger Coast Guard estimates.) This figure is number of facilities affected by the facilities, and based upon comments to this rulemaking, is not extending the cited in the TWIC assessment report electronic TWIC inspection rule in the delay to those facilities at this time. We also, as mentioned above. Based on the delay NPRM. Furthermore, based on the believe that implementing the electronic information provided by both the information available at the time, the TWIC inspection requirement at commenter and HSOAC, we will Coast Guard did not believe there were any facilities that received vessels passenger facilities and vessels will attempt to get a much fuller estimate of carrying CDC, but did not in any other provide improved security benefits for the population in future studies, as way store, use, process, or transfer bulk these facilities, which include large described in the TWIC Delay NPRM. CDC on the facility (even if some vessels ferry and cruise terminals that handle Commenters expressed concern about carrying bulk CDC did not unload their 60 plus million passengers per year. the inclusion, in the TWIC Reader final cargo at the facility), and so we did not We received only one comment rule, of regulatory text that the Coast add them to the affected population. specific to the treatment of passenger Guard did not originally propose in the However, after the publication of the vessels and facilities, which contained TWIC Reader NPRM. Specifically, while final rule, various parties informed the several major arguments. First, the the proposed regulatory text in the Coast Guard, without presenting data, commenter argued that passenger TWIC Reader NPRM (and the associated that they believed there was a facilities that do not receive vessels text discussed in the TWIC Reader population of facilities that received subject to electronic TWIC inspection ANPRM) applied the Risk Group A vessels carrying CDC bulk without requirements should also be exempt requirements to ‘‘Facilities that handle otherwise handling bulk CDC on their from the requirements, regardless of Certain Dangerous Cargoes (CDC) in facilities. The Coast Guard took such how many passengers use the facility. bulk,’’ 86 the TWIC Reader final rule statements in good faith, and thus, in More specifically, the commenter added the phrase ‘‘or receive vessels the TWIC Delay NPRM, we stated, ‘‘we suggested that facilities receiving carrying CDC in bulk’’ to that cannot determine the number of vessels with less than 20 crewmembers sentence.87 In the final rule, we [facilities that receive vessels carrying should be exempt from the electronic explained the rationale for the CDC in bulk] at this time.’’ 90 TWIC inspection requirement. Finally, additional language. In explaining our One commenter argued that because the commenter suggested that electronic interpretation of the word ‘‘handle’’ in the number of affected facilities TWIC inspection does not substantially § 105.253(a), the TWIC Reader final rule remained consistent between the NPRM enhance security at passenger 95 stated that the purpose of the additional and final rule despite the addition of the facilities. We address each of these language at issue was to ‘‘clarify risk new language to § 105.253(a), the Coast arguments below. The commenter raised an issue, also groups.’’ 88 The Coast Guard explained Guard’s ‘‘accounting for Non-Transfer raised in the TWIC Reader rulemaking, that a facility that receives vessels facilities are so suspect that they should 91 that facilities that receive vessels be carrying CDC bulk, even if the CDC is be ignored.’’ We disagree. As exempted from the electronic TWIC not transferred to the facility, is explained above, the affected inspection requirement due to low functionally the same as a facility that population remained consistent numbers of crew. The comment noted creates, stores, processes, or transfers between the TWIC reader NPRM and that vessels with 20 or fewer TWIC- (i.e., ‘‘handles’’) bulk CDC, insofar as final rule because the policy in the documents was consistent. Furthermore, holding crewmembers are exempt from there is bulk CDC present and it is the we note that despite its assertion that the electronic TWIC inspection responsibility of the facility to restrict the lack of a separate accounting for this requirement, but that this exemption access to those CDCs to valid TWIC- class of facility renders the Coast does not apply to facilities. It stated holders. We reasoned that, ‘‘[w]hile Guard’s calculations moot, the that, if a Coast Guard-approved vessel moored at a facility, a vessel must rely commenter affirms the Coast Guard’s security plan for a larger ferry on the facility’s security program to original logic, noting in a parenthetical designates certain portions of the vessel adequately secure the interface between that ‘‘relatively few facilities that as off-limits to a passenger and requires the facility and vessel and mitigate the receive vessels carrying CDC without 89 a person to possess a valid TWIC to threat of a TSI.’’ Thus, the Coast transferring them do not also handle have unescorted access secure areas, the Guard does not consider the phrase ‘‘or bulk CDC by non-maritime means.’’ 92 same standard should apply to a receives vessels carrying CDC in bulk’’ Similarly, one commenter argues, ‘‘the terminal that receives such a vessel. The to be a new class of facilities subject to methodology defining the risk categories commenter asserted that it was an the electronic TWIC inspection does not include lay-berth 93 or other ‘‘anomaly’’ that certain passenger requirements, but merely clarification of cargoes contained or not transferred.’’ 94 vessels are not required to carry and For the reasons described above, the deploy TWIC readers, but a facility that 84 See USCG–2017–0457–0001. receives such a vessel is required to 85 USCG–2017–0711–007, p. 10. 90 83 FR 29067 at 29074. have and use TWIC readers.96 We do not 86 78 FR 17782 at 17831, proposed regulatory text 91 USCG–2017–0711–0007, p. 10. believe this is an anomaly, and would § 105.253(a)(1). 92 USCG–2017–0711–0007, p. 10. 87 refer the commenter back to the logic 81 FR 57652 at 57712, final regulatory text 93 ‘‘Lay berth’’ is the situation where a vessel § 105.253(a)(1). docks at a facility, but does not load or unload 88 81 FR 57652 at 57681. cargo. 95 USCG–2017–0711–0009, p. 2. 89 Id. 94 USCG–2017–0711–0013, p. 2. 96 USCG–2017–0711–0009, p. 2.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13503

underpinning the requirement. In the with TWIC inspection conducted at a CFR part 105 contains explanations of TWIC final rule, in a section entitled, secure access point would be outside of noncompliance and waivers and when ‘‘The Crewmember Exemption Does Not the public access area.101 For passenger they will be granted. The commenter Apply to Facilities,’’ 97 we explained facilities, the majority of the areas may also asked whether the existence of that ‘‘the rationale that justifies an be designated ‘‘public access areas,’’ waivers implied that the TWIC delay exemption for vessels with a low crew ‘‘passenger access areas,’’ or ‘‘employee final rule should include all facilities count does not transfer to facilities,’’ 98 access areas’’ (such as break rooms). In subject to the electronic TWIC noting that while at sea, few persons such an instance, electronic TWIC inspection. For the reasons discussed board or depart a vessel, while persons inspection points may only be located at above, the answer is no. constantly do so at facilities. We entrances to secure areas such as the One commenter stated that the continue to stand by the reasoning laid pier or FSO’s office.102 proposed rule does not define ‘‘bulk out in that section of the TWIC final While we agree with the commenter storage.’’ 104 We note that the term rule. The Coast Guard also reiterated that the secure area footprint of a ‘‘bulk’’ is defined in 33 CFR 101.105, that the statutory provision in 46 U.S.C. passenger facility may be small, we and we apply the plain meaning to the 70105(m)(1) mandates an exemption disagree that this constitutes a rationale term ‘‘storage.’’ The commenter also from the electronic TWIC inspection for delaying or eliminating the suggested that, to avoid confusion, the requirement for vessels with a low crew electronic TWIC inspection rule should list the CDC chemicals, and count, and noted that there was no such requirements at passenger facilities. asked about the treatment of a mixture provision for facilities. Unlike a facility that handles CDC in of chemicals listed as CDCs. We agree The commenter also suggested that bulk, where the targets of a potential with the commenter that a list of CDCs the value of electronic TWIC inspection terrorist attack would be located would be helpful, and to that end, are at passenger facilities is minimal, and exclusively inside the secure area, at publishing such a list concurrently with that the current level of security is passenger facilities the potential target— this rule, in accordance with 33 CFR adequate. The commenter stated that the passengers themselves—would be 160.202. The list is published in the ‘‘One [Passenger Vessel Association] almost exclusively located outside the docket and will be maintained in ferry operator subject to the current rule area secured by a TWIC, as passengers Homeport. With regard to ‘‘mixtures,’’ reports that its facility security plan are not escorted, nor do they generally we note it could depend on the designated only the office of the facility hold TWICs. However, vital parts of the particular chemistry at issue; therefore, security officer (FSO) as a secure space facility, including waterside access to we do not have enough information to and that only the FSO works in the the vessel, baggage handling and provide an answer. office. Under the current rule, there will security areas, storage areas for need to be a TWIC reader installed in equipment such as vessel fuel or G. Comments on the Regulatory this space so the FSO can validate his cleaning supplies, and administrative Analysis own TWIC each time he enters his offices, are all secured by electronic The Coast Guard did not receive any office.’’ 99 While we cannot speak to TWIC inspection. These security comments on the costs and benefits individual circumstances, we note that measures help to ensure that access to associated with delaying the the definition of a ‘‘secure area’’ is, in those targeted areas is restricted to implementation of the TWIC Reader part, ‘‘the area . . . at a facility over persons who have been granted final rule. However, we received several which the owner/operator has unescorted access to these areas. By comments regarding the costs and implemented security measures for implementing TWIC inspection for benefits associated with the requirement access control in accordance with a waterside access to the vessel and for electronic TWIC inspection, as Coast Guard approved security plan. It baggage handling and storage area, and published in the 2016 TWIC Reader does not include passenger access areas, the like, the potential for a TSI is final rule RA.105 As the 2016 TWIC employee access areas, or public access decreased. For these reasons, the Coast Reader final rule RA is the main data areas.’’ 100 While it is possible that a Guard believes it is imperative that we source for the RA published in the facility could have no access control begin implementation of this part of the TWIC Delay NPRM, we address these measures outside of the FSO’s office, we electronic TWIC inspection requirement comments below. note that many passenger facilities do as soon as possible. 1. Comments on the Total Cost of the contain substantial secure areas. We do agree with the commenter that F. Miscellaneous Comments TWIC Reader Rule there are differences in the layouts and The Coast Guard received several One commenter stated that the Coast security profiles of passenger facilities comments that do not fit into any of the Guard underestimated the total cost of and other Risk Group A facilities (that above categories. One commenter asked the final TWIC Reader rule, citing the handle CDC in bulk), and note that these why some Captains of the Port (COTPs) declaration of a Dow chemical differences are paramount in the Coast are authorized to grant waivers to employee.106 The employee estimated Guard’s decision not to delay the facilities and some are not, as well as the TWIC Reader Rule would result in electronic TWIC inspection for under what conditions waivers are an annual productivity loss resulting passenger facilities. We stated the authorized.103 We note that all COTPs from the delay time of using the TWIC differences explicitly in the final rule, are authorized to permit facilities to readers of $3.65 million for one Dow highlighting the differences between continue to operate in the event of non- facility, and a $10 million cost to all chemical cargo facilities where the compliance pursuant to 33 CFR 105.125, Dow facilities including productivity entire facility may be considered a which is different than authority to losses, and hardware, infrastructure, ‘‘secure area’’ and facilities that have grant waivers. Waivers can be installation, and maintenance costs. The public access areas, like parking lots authorized under the provisions of 33 commenter states that Dow’s costs alone CFR 105.130. The regulatory text in 33 are almost half of the $22.5 million in 97 81 FR at 57682. 98 81 FR at 57682. 101 81 FR at 57671. 104 USCG–2017–0711–0011. 99 USCG–2017–0711–0009, p. 2. 102 Id. 105 USCG–2007–28915–0231. 100 See 81 FR at 57671, citing 33 CFR 101.105. 103 USCG–2017–0711–0008. 106 USCG–2017–0711–0006.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13504 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

annualized costs as estimated by the rule will disrupt the efficient evaluate delay times associated with the final rule. transportation of goods, which, in turn, 2016 TWIC Reader rule. Both The cost estimates provided in the may result in ‘‘very high economic commenters cite the May 2013 GAO final TWIC Reader rule represent the costs.’’ As evidence, the commenter report ‘‘Transportation Worker average burden across all facilities provided information on the Identification Credential: Card Reader subject to that rulemaking, and therefore contribution of Louisiana’s oil and gas Pilot Results Are Unreliable; Security the estimates may not reflect the and chemical sectors to the Gross Benefits Need to Be Reassessed,’’ (GAO– individual circumstances of each Domestic Product (GDP), employment 13–198) as evidence the pilot data is facility or firm. In addition, the $10 numbers, and household earnings, inaccurate, and believe the Coast million value provided by the information on the amount of cargo Guard’s reliance on this data commenter is an annual value and is not shipped through ports located in contravenes the GAO’s findings. Issues comparable to the $22.5 million Louisiana, as well as information on the with the pilot data were also raised in annualized cost estimate provided in tank truck industry. The commenter the HSOAC assessment. The assessment the final rule. An annualized value also asserts that the Coast Guard did not stated that the use of the pilot study accounts for the fact that the costs of the regulate container facilities not data in generating the 2015 regulatory rule will differ over time and provides otherwise categorized in Risk Group A analysis was flawed in that it made an estimate that spreads these costs because of the ‘‘significant levels’’ of faulty assumptions of the number of equally over the analysis period, taking ’’delay costs,’’ and states this is readers required at facilities.109 a discount rate into account. This value evidence of the high economic costs of While the Coast Guard acknowledges accounts for years where a facility may transportation delays. there were many challenges in the have larger costs associated with While the economic data presented by implementation of the TWIC reader implementing the rule due to one time the commenter provides information on pilot program, we believe the or infrequent costs such as purchasing the oil and gas industry in Louisiana considerable data obtained were of hardware, installation, and and on the tank truck industry, it does sufficient quantity and quality to infrastructure costs, as well as years not provide any information on how the support the general findings and where the facility will have much TWIC Reader rule may impact these conclusions of the TWIC reader Pilot smaller ongoing costs. During the first industries, or the cost of the TWIC Report. The pilot program obtained two years of the cost analysis, the Coast Reader rule to these industries. We do sufficient data to evaluate TWIC reader Guard accounted for these large onetime note the commenter provides context to performance and assess the impact of costs and estimated a much larger total the enormous importance of securing using TWIC readers at maritime annual cost of approximately $56 these facilities from terrorist attack, facilities. Furthermore, the Coast Guard million per year. The $10 million value given their large role in the local, as supplemented the information from the provided by the commenter includes well as national, economy. TWIC Pilot Program with other sources onetime costs such as hardware and, Further, the Coast Guard disagrees of information. For example, in the 2016 therefore, is not directly comparable to that we did not regulate container RA, the Coast Guard estimated the the $22.5 million annualized cost facilities that would not otherwise be number of access points per facility type estimate, which smooths these costs categorized in Risk Group A because of through the use of an independent data over time. significant delay costs associated with source (Facility Security Plans), and Furthermore, we note that the the TWIC Reader rule, and this is estimated the costs of TWIC readers majority of the measured costs the evidence of the high economic costs of through published pricing information. commenter cites are operational losses delays. Rather, the Coast Guard did not The Coast Guard did not use this data due to ‘‘average daily loss in regulate these container facilities from the pilot program for the exact productivity of $10,000 per day.’’ The because, upon review, we found that reasons the commenters suggest. TWIC Reader rule provided facility many of the high-risk threat scenarios at 4. Comments on Collecting New Cost operators flexibility with regard to the container facilities would not be Data purchase, installation, and use of mitigated by electronic TWIC electronic readers, allowing facilities to inspection. Therefore, the costs of One commenter stated that the TWIC adjust their operations to reduce large electronic TWIC inspection for Delay NPRM gave no indication the delay times. The RA for the TWIC container facilities not in Risk Group A Coast Guard would use the three-year Reader rule accounted for the fact that would not be justified by the amount of delay period to gather new economic some facilities may have to make potential risk reduction at these data, and thus any economic analysis modifications to business operations to facilities. This is keeping with the supporting future rule makings would accommodate electronic TWIC requirements of Executive Order 12866, be based on the same ‘‘faulty’’ cost data inspection requirements, such as which directs agencies to select as the previous rulemakings.110 increasing the number of access points approaches which maximize the net While the Coast Guard did not for vehicles. Thus, we believe most benefits to society. explicitly state it would gather new cost facilities would be able to adjust their information to support future operations to ensure the most efficient 3. Comments on the Use of the TWIC rulemaking efforts, that does not mean use of the readers rather than incurring Pilot Program Data we would not gather additional cost large delay costs. The Coast Guard received two information to support future comments on the 2016 RA’s use of cost rulemakings. If the Coast Guard chooses 2. Comments on the Economic Impact of information from the TWIC Reader pilot to implement a new rulemaking, the the Rules program.108 One commenter stated that supporting RA would use the best We received one comment on the the data from the TWIC Pilot Program is reasonably available economic potential ‘‘significant economic impact’’ too out-of-date to be used, and that the information, as required by OMB of the TWIC Reader rule.107 The pilot program failed to accurately circular A–4. Depending on the commenter believes the TWIC Reader 108 USCG–2017–0711–0006; USCG–2017–0711– 109 HSOAC report at 128. 107 USCG–2017–0711–0006. 0007. 110 USCG–2017–0711–0007.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13505

information available, this cost data may modifications should be made during We then calculated the difference or may not be new. the delay period. between the two costs to estimate the impact of this final rule. To properly H. Conclusion V. Regulatory Analysis compare the costs and benefits of this Based on the concerns of commenters This final rule will delay final rule and the TWIC reader rule, we regarding implementation problems, implementation of the TWIC Reader first updated the costs of the TWIC particularly involving confusion rule for 3 years for all facilities that Reader rule from 2012 dollars to 2016 regarding the final rule and delay handle CDC in bulk, which are dollars. NPRM, delays in undertaking comprised of three types of Risk Group compliance action, and difficulty A facilities: (1) Facilities that handle A. Regulatory Planning and Review acquiring equipment, a delay for all certain dangerous cargoes in bulk, but Executive Orders 12866 (Regulatory facilities that handle CDC in bulk do not transfer these cargoes to or from Planning and Review) and 13563 represents the best path forward. In a vessel; (2) facilities that handle certain (Improving Regulation and Regulatory doing so, we can give facilities that dangerous cargoes in bulk, and do Review) direct agencies to assess the handle CDC in bulk additional time to transfer these cargoes to or from a costs and benefits of available regulatory acquire and install equipment, train vessel; and (3) facilities that receive alternatives and, if regulation is personnel, make operational vessels carrying certain dangerous necessary, to select regulatory adjustments, and update FSPs to cargoes in bulk, but do not, during that approaches that maximize net benefits account for use of electronic TWIC vessel-to-facility interface, transfer these (including potential economic, inspection in areas that contain bulk bulk cargoes to or from those vessels. environmental, public health and safety CDC. We also note that, as described in This rule will delay the implementation effects, distributive impacts, and this document and in the TWIC Delay of the TWIC Reader rule for 370 of the equity). Executive Order 13563 NPRM, we are studying the distribution 525 affected Risk Group A facilities. The emphasizes the importance of of bulk CDC at MTSA-regulated remaining 155 facilities (which are all quantifying both costs and benefits, of facilities, with the goals of determining facilities that receive large passenger reducing costs, of harmonizing rules, the exact population of affected vessels), and 1 vessel will have to and of promoting flexibility. Executive facilities and the properties of the implement the requirements of the Order 13771 (Reducing Regulation and particular chemicals stored at these TWIC reader rule by June 8, 2020. Controlling Regulatory Costs) directs facilities. We believe that delaying the Below, we provide an updated agencies to reduce regulation and implementation of the rule for facilities regulatory analysis of the TWIC Reader control regulatory costs and provides that handle CDC in bulk will allow rule that presents the impacts of that ‘‘for every one new regulation those facilities to reduce costs by delaying the effective date of the TWIC issued, at least two prior regulations be providing adequate time to implement Reader rule for the three types of Risk identified for elimination, and that the the requirements under conditions of Group A facilities defined in the more regulatory certainty and preceding paragraph. We developed this cost of planned regulations be prudently equipment availability. We also believe rule after considering numerous statutes managed and controlled through a that the implementation of electronic and Executive orders related to budgeting process.’’ TWIC inspection requirements at rulemaking. Below we summarize our This rule is a significant regulatory passenger facilities, and for the one analyses based on these statutes or action under section 3(f) of Executive large passenger vessel, will provide Executive orders. Order 12866. The Office of Management immediate security benefits at those For this updated analysis, we and Budget has reviewed it under that facilities and vessel in protecting vital estimated the impact of delaying the Order. It requires an assessment of parts of the facility from potential TSI. TWIC Reader rule by calculating the 10- potential costs and benefits under Overall, we estimate that this policy year cost of this final rule, where only section 6(a)(3) of Executive Order implements the electronic TWIC certain facilities will incur costs starting 12866. DHS considers this rule to be an inspection requirement at 155 facilities, in Years 1 and 2 and other facilities will Executive Order 13771 deregulatory primarily cruise and large ferry incur no costs in the first 2 years, and action. See the OMB Memorandum terminals that handle 60 plus million compare it to the 10-year cost presented titled ‘‘Guidance Implementing passengers per year and 1 vessel, in in the RA for the TWIC Reader rule.111 Executive Order 13771, titled ‘Reducing furtherance of enhanced security Regulation and Controlling Regulatory measures to protect passengers and the 111 At the time of analysis, the Coast Guard did Costs’’’ (April 5, 2017). Details on the public. In order to comply with this not have a final draft HSOAC assessment, and estimated cost savings of this rule can therefore we did not incorporate any cost estimates be found in the rule’s regulatory immediate security need, facilities and from that report into our analysis, as we were vessels will have 60 days to implement unable to review or validate those cost estimates for analysis (RA) that follows. the TWIC reader requirement. It also our RA. Further, as the HSOAC assessment was provides the Coast Guard time to published after the publication of the NPRM, the as identified in the HSOAC assessment. These public would not have had the opportunity to errors affected estimates of the average number of analyze the suggestions and comments review and comment on those cost estimates. relating to the TWIC program provided readers per access point, and the average However, we did make modifications to the RA to installation and infrastructure cost per reader at in the assessment, and determine what address the mathematical errors from the 2016 RA facilities.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13506 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

We have determined that this final regulatory action under Executive Order prepared an accounting statement rule does not have an annual effect on 12866, because of its impact on showing the classification of impacts the economy of $100 million or more. industry.112 Therefore, in accordance associated with this final rule.113 This rule is an ‘‘other’’ significant with OMB Circular A–4, we have

TABLE 1—OMB A–4 ACCOUNTING STATEMENT 2019–2029 PERIOD OF ANALYSIS—2016$

Category Primary estimate Minimum estimate High estimate Source

Benefits

Annualized monetized benefits ($ None ...... 7% None ...... 7% None ...... 7% RA. Mil). None ...... 3% None ...... 3% None ...... 3%

Annualized quantified, but None RA. unmonetized, benefits.

Unquantifiable Benefits ...... For facilities with a delayed compliance, final rule will postpone the enhanced benefits of electronic RA. TWIC inspection.

Cost Savings

Annualized monetized cost sav- $3,380,017 ... 7% ...... 7% ...... 7% RA. ings ($ Mil). $2,144,017 ... 3% ...... 3% ...... 3% RA.

Annualized quantified, but None RA. unmonetized, cost savings.

Qualitative (un-quantified) cost The final rule will delay the cost to retrieve or replace lost PINs for use with TWICs for the facilities RA. savings. with delayed implementation.

Transfers

Annualized monetized ...... Not calculated Not calculated Not calculated RA.

From whom to whom? ...... RA.

Annualized monetized transfers: None None None ‘‘off-budget’’. From whom to whom? ...... None None None

Miscellaneous Analyses/Category

Effects on State, local, and/or None None None tribal governments.

Effects on small businesses ...... Will not have a significant economic impact on a substantial number of small entities. RA.

Effects on wages ...... None None None

Effects on growth ...... No determination No determination No determination

Because this final rule does not Table 2 summarizes the changes to TWIC Reader rule which impacted the modify any of the regulatory the RA between the TWIC Delay NPRM estimated average number of readers per requirements in the TWIC Reader rule and this final rule. In this final rule, the access point, and the average but, rather, delays the implementation Coast Guard modified the population of installation and infrastructure costs for of that 2016 final rule for some facilities, facilities that will delay the facilities. Although we have updated we did not revise our fundamental implementation of the TWIC reader our analysis from the NPRM to reflect methodologies or key assumptions from rule, to include all facilities that handle these changes, this did not modify the the 2016 TWIC Reader final rule RA.114 CDC in bulk. In addition, we fixed methodology of our RA. mathematical errors from the 2016

112 Under Executive Order 12866 economically of Information and Regulatory Affairs (OIRA) may issues arising out of legal mandates, the President’s significant regulatory action means any regulatory deem other regulatory actions significant if that priorities, or the principles set forth in Executive action that is likely to have an annual effect on the action is likely to (1) Create a serious inconsistency Order 12866. economy of $100 million or more, or adversely or otherwise interfere with an action taken or 113 https://www.whitehouse.gov/sites/ affect in a material way the economy, a sector of planned by another agency; (2) Materially alter the the economy, productivity, competition, jobs, the budgetary impact of entitlements, grants, user fees, whitehouse.gov/files/omb/circulars/A4/a-4.pdf. environment, public health or safety, or State, local, or loan programs or the rights and obligations of 114 USCG–2007–28915–0231. or tribal governments or communities. The Office recipients thereof; or (3) Raise novel legal or policy

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13507

TABLE 2—SUMMARY OF CHANGES FROM THE TWIC DELAY RULE NPRM TO TWIC DELAY RULE FINAL RULE

Element of the analysis NPRM Final Rule Resulting change in RA

Affected Popu- 122 facilities that handle bulk CDC, but 370 facilities that handle bulk CDC, and Increases estimated cost savings, as im- lation. do not transfer it to or from a vessel, an unknown number of facilities that plementation costs will be delayed for and an unknown number of facilities receive vessels carrying bulk CDC but, more facilities. that receive vessels carrying bulk CDC during that vessel-to-facility interface, but, during that vessel-to-facility inter- do not transfer bulk CDC to or from face, do not transfer bulk CDC to or the vessel. from the vessel. Errors in TWIC Cost estimates are based on data from The revised cost model calibrated the Increases estimated compliance costs Cost Cal- the 2016 TWIC Final Reader Rule, methodology for estimating the num- for facilities, resulting in a total culations. which incorrectly calculated the aver- ber of readers. This change yielded annualized cost increase of approxi- age number of readers per access more accurate compliance costs for mately $4 million (with a 7% discount point for facilities, and the average in- facilities. rate). stallation and average infrastructure cost per reader for facilities. These er- rors did not impact the estimated costs for vessels.

In the 2016 TWIC Reader final rule facility interface, do not transfer the affected vessel, along with the RA, we estimated that 525 facilities and bulk CDC to or from the vessel. We did qualitative costs and benefits, remain 1 vessel out of the MTSA-regulated not include these facilities in our the same. Because this rule will delay entities (13,825 vessels and more than MSRAM risk analysis or RA for the the implementation of the TWIC Reader 3,270 facilities) will have to comply TWIC Reader rule, or in this final rule’s rule by 3 years for 370 facilities, it will with the final rule’s electronic TWIC RA because we are unable to determine result in cost savings to both industry inspection requirements using the number of these facilities at this and the government of $23.74 million MSRAM’s risk-based tiered approach.115 time. (discounted at 7 percent) over a 10-year This rule will delay the implementation 2016 TWIC Reader rule cost estimates period of analysis ($191.81 million of the TWIC reader rule for 370 of the from 2012 dollars to 2016 dollars based minus $168.07 million). As stated 525 affected Risk Group A facilities by on Gross Domestic Product (GDP) above, we used the same 10-year period 3 years, while the remaining 155 Deflator data from the U.S. Bureau of of analysis in order to be able to facilities (which are all facilities that Economic Analysis (BEA).116 The GDP properly compare the costs of this final receive large passenger vessels), and 1 deflator is a measure of the change in rule and the TWIC Reader rule, which vessel will have to implement the price of domestic goods and services estimated the costs and benefits over a requirements of the TWIC Reader rule purchased by consumers, businesses, 10-year period. At a 7-percent discount by June 8, 2020. The results reflect that and the government. rate, we estimate the total annualized 370 facilities out of the 525 facilities Table 3 summarizes the costs and cost savings to be $3.38 million ($27.29 either handle certain dangerous cargoes benefits of the 2016 TWIC Reader final million ¥ $23.92 million), and $2.14 in bulk but do not transfer these cargoes rule as well as this rule. We do not million ($25.18 million ¥$23.04 to or from a vessel, or handle certain anticipate any new costs to industry as million). Using a perpetual period of dangerous cargoes in bulk and do a result of implementing this final rule, analysis, and 2019 as the first year of transfer these cargoes to or from a because it will not change the analysis, we estimated the total vessel. This final rule will also apply to applicability of the 2016 final rule or annualized cost savings of this rule to be facilities that receive vessels carrying result in any other changes to the TWIC $1.53 million in 2016 dollars, bulk CDC but, during the vessel-to- Reader rule. The impact to the one discounting back to 2016 dollars.

TABLE 3—SUMMARY OF COSTS SAVINGS AND CHANGE IN BENEFITS: 2016 FINAL TWIC READER RULE (81 FR 57652) AND FINAL RULE TO DELAY THE TWIC READER RULE

Category 2016 TWIC reader rule (2016 $) Final rule to delay the TWIC reader rule (2016 $)

Applicability ...... High-risk MTSA-regulated facilities and high-risk MTSA- Same as in the TWIC Reader rule except the facilities regulated vessels with greater than 20 TWIC-holding and vessels handling bulk CDC, but not transferring it crew. to or from the vessel. Affected Population ...... 1 vessel ...... No change from the TWIC Reader rule.

115 See Table 2.8 on page 26 of the TWIC Reader 116 For consistency across rulemaking analyses, at https://apps.bea.gov/histdata/file final rule RA for the estimate of 525 facilities, and we are using the annual Implicit Price Deflators for StructDisplay.cfm?HMI=7&DY=2016&DQ= Table 2.1 on page 23 for the estimate of 1 vessel. Gross Domestic Product (BEA National Income and Q4&DV=Third&dNRD=March-30-2017 under Product Accounts (NIPA) Table 1.1.9) values Section 1 (the BEA only has historical data updated in March 30, 2017 Available for download available for download, Accessed March 15, 2019).

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13508 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

TABLE 3—SUMMARY OF COSTS SAVINGS AND CHANGE IN BENEFITS: 2016 FINAL TWIC READER RULE (81 FR 57652) AND FINAL RULE TO DELAY THE TWIC READER RULE—Continued

Category 2016 TWIC reader rule (2016 $) Final rule to delay the TWIC reader rule (2016 $)

525 facilities (to comply by Aug. 23, 2018) ...... 370 facilities that handle bulk CDC (to comply by May • 370 facilities that handle bulk CDC. 8, 2023). The rule will also apply to facilities that re- • 155 facilities that handle passenger vessels. ceive vessels carrying bulk CDC but, during that ves- sel-to-facility interface, do not transfer bulk CDC to or from the vessel. However, the number of these facili- ties cannot be determined at this time and will not be known until after an additional study is conducted to improve the risk methodology and determine the new risk groups. Costs to Industry and Gov- Industry: $27.29 (annualized) * ...... Industry: $23.92 (annualized). ernment ($ millions, 7% Government: $0.014 (annualized) * ...... Government: $0.013 (annualized). discount rate) *. Combined: $27.31 (annualized) * ...... Combined: $23.93 (annualized). Industry: $191.71 (10-year) * ...... Industry: $167.98 (10-year). Government: $0.097 (10-year) * ...... Government: $0.088 (10-year). Combined: $191.81 (10-year) * ...... Combined: $168.07 (10-year). Costs Savings to Industry N/A ...... Industry: $3.38 (annualized). and Government ($ mil- Government: $0.001 (annualized). lions, 7% discount rate) *. Total: $3.38 (annualized). N/A ...... Industry: $23.73 (10-year). Government: $0.01 (10-year). Total: $23.74 (10-year). Change in Costs (Quali- Time to retrieve or replace lost PINs for use with The rule will delay the cost to retrieve or replace lost tative). TWICs. PINs for use with TWICs for the facilities with de- layed implementation. Change in Benefits (Quali- Enhanced access control and security at U.S. maritime Delaying enhanced access control and security for the tative). facilities and on board U.S.-flagged vessels. facilities with delayed implementation. Reduction of human error when checking identification Delaying the reduction of human error when checking and manning access points. identification and manning access points for the facili- ties with delayed implementation. * Note: These are the final costs to industry and government after fixing mathematical errors in 2016 TWIC Final Reader Rule, which incor- rectly calculated the average number of readers per access point for facilities, and the average installation and infrastructure cost per reader for facilities, and then inflating the costs to 2016 dollars. N/A = Not applicable.

Methodology final rule cost estimates to fix however, did not impact the estimated 118 TWIC Reader Rule Costs Inflated to mathematical errors identified in the costs for vessels. 2016 dollars TWIC effectiveness assessment, which We used an inflation factor derived affected estimates of the average number from the GDP deflator data. We As shown in table 3, after adjusting of readers per access point, and the calculated the inflation factor of 1.059 the annualized cost from the 2016 TWIC average installation and infrastructure by dividing the annual 2016 index Reader rule from 2012 dollars to 2016 cost per reader at facilities. These errors number (111.445) by the annual 2012 dollars (over a 10-year period) and impact the capital and maintenance cost index number (105.214). fixing the mathematical errors in 2016 estimates for facilities, and we We then applied this inflation factor TWIC Reader rule RA, the annualized identified them after the publication of to the costs for vessels and additional cost of the 2016 TWIC Reader rule is the NPRM, and after fixing the costs, which include additional delay approximately $27.29 million at a 7- mathematical errors in the 2016 TWIC costs, travel costs, and the cost to percent discount rate.117 We performed Reader rule RA, the annualized total replace TWIC readers that fail (table this update to compare them to this cost increased by $4.12 million to 4.38 of the TWIC Reader final rule final rule’s total industry costs on the $27.29 million (in 2016$ with a 7- RA).119 Table 4 presents these inflated same basis. We also modified the 2016 percent discount rate). These errors, costs.

117 The published annualized cost in the 2016 identification-credential-twic-reader-requirements, Third&dNRD=March-30-2017 under Section 1 (the TWIC Reader rule RA was $21.9 million (in 2012 page 57700. BEA has only historical data available for dollars with a 7-percent discount rate), and after 118 U.S. Bureau of Economic Analysis, ‘‘Table download). Accessed March 15, 2019. adjusting for inflation this number is $23.3 million 1.1.9 Implicit Price Deflators for Gross Domestic 119 Additional delay costs account for delays (in 2016 dollars with a 7-percent discount rate). Product,’’ published March 30, 2017,vailable at resulting from the use of an invalid and/or broken https://www.federalregister.gov/documents/2016/ https://apps.bea.gov/histdata/fileStruct TWIC card. 08/23/2016-19383/transportation-worker- Display.cfm?HMI=7&DY=2016&DQ=Q4&DV=

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13509

TABLE 4—COMPARISON OF TOTAL COST FOR VESSELS AND ADDITIONAL COSTS IN 2012 DOLLARS AND 2016 DOLLARS UNDER 2016 TWIC READER RULE [Millions]

Vessel Additional costs Year 2012 $ 2016 $ 2012 $ 2016 $

1 ...... 0.0210 0.0222 4.21 4.46 2 ...... 0.0036 0.0038 4.21 4.46 3 ...... 0.0036 0.0038 4.21 4.46 4 ...... 0.0036 0.0038 4.21 4.46 5 ...... 0.0036 0.0038 4.21 4.46 6 ...... 0.0177 0.0187 4.21 4.46 7 ...... 0.0036 0.0038 4.21 4.46 8 ...... 0.0036 0.0038 4.21 4.46 9 ...... 0.0036 0.0038 4.21 4.46 10 ...... 0.0036 0.0038 4.21 4.46

Total ...... 0.0677 0.0717 42.10 44.59 Totals may not sum due to rounding.

For facilities, we applied this inflation reader installation and initial training. and by correcting these errors the factor to capital, maintenance, and Operational costs also include ongoing annualized total capital and operational costs because the final rule costs, such as those for keeping and maintenance costs increased by will apply only to these cost elements. maintaining records, downloading the approximately $4.11 million and 0.01 Capital costs consist of the cost to canceled card list, and ongoing annual million respectively (in 2016 $ with a 7- purchase and install TWIC readers, as training. We also modified the 2016 percent discount rate). Table 5 presents well as the cost to fully replace TWIC final rule cost estimates to correct errors a comparison of these facility costs readers 5 years after the original in the calculations of the average before and after our corrections, as well installation. Maintenance costs account number of readers per access point, the as a comparison of the costs in 2012 and for the costs to maintain TWIC readers average installation cost per reader, and 2016 dollars, and an estimate of the total every year after the original installation. the average infrastructure cost per number of facilities complying with the Operational costs include costs that reader. We used these values to regulation each year. occur only at the time of the TWIC calculate capital and maintenance costs, TABLE 5—COMPARISON OF TOTAL COST FOR FACILITIES IN 2012 DOLLARS AND 2016 DOLLARS UNDER 2016 TWIC READER RULE [Millions]

Capital costs Maintenance costs Operational costs * Undiscounted total

Number Total 2012$— 2012$— 2012$— 2012$— 2012$— 2012$— 2012$— Year of new number of published in fixed published in fixed published in published in fixed facilities facilities 2016 final math 2016$ 2016 final math 2016$ 2016 final 2016$ 2016 final math 2016$ TWIC errors TWIC errors TWIC TWIC errors rule RA rule RA rule RA rule RA 120

1 ...... 263 263 $49.49 $64.51 $68.31 $0.00 $0.00 $0.00 $1.99 $2.10 $51.47 $66.49 $70.42 2 ...... 262 525 49.49 64.51 68.31 0.99 0.99 1.05 2.16 2.29 52.64 67.66 71.66 3 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52 4 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52 5 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52 6 ...... 0 525 9.87 9.94 10.53 1.97 1.99 2.11 1.34 1.42 13.18 13.27 14.05 7 ...... 0 525 9.87 9.94 10.53 1.97 1.99 2.11 1.34 1.42 13.18 13.27 14.05 8 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52 9 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52 10 ...... 0 525 0.00 0.00 0.00 1.97 1.99 2.11 1.34 1.42 3.31 3.33 3.52

Total ...... 118.71 148.90 157.69 16.78 16.90 17.90 14.84 15.72 150.33 180.65 191.31 Totals may not sum due to rounding. * The math errors in the 2016 RA did not impact operational costs, so they did not need to be adjusted.

Table 6 summarizes the total costs to annualized cost to be $27.29 million at industry of the 2016 TWIC Reader rule a 7-percent discount rate. in 2016 dollars. We estimated the

120 Transportation Worker Identification https://www.federalregister.gov/documents/2016/ identification-credential-twic-reader-requirements, Credential (TWIC) Reader Requirements, 2016: 08/23/2016-19383/transportation-worker- at 57700.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13510 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

TABLE 6—TOTAL INDUSTRY COST UNDER 2016 TWIC READER RULE [Millions, 2016 dollars]

Additional Year Facility Vessel costs * Undiscounted 7% 3%

1 ...... $70.42 $0.02 $4.46 $74.90 $70.00 $72.72 2 ...... 71.66 0.00 4.46 76.12 66.48 71.75 3 ...... 3.52 0.00 4.46 7.98 6.52 7.31 4 ...... 3.52 0.00 4.46 7.98 6.09 7.09 5 ...... 3.52 0.00 4.46 7.98 5.69 6.89 6 ...... 14.05 0.02 4.46 18.53 12.35 15.52 7 ...... 14.05 0.00 4.46 18.51 11.53 15.05 8 ...... 3.52 0.00 4.46 7.98 4.65 6.30 9 ...... 3.52 0.00 4.46 7.98 4.34 6.12 10 ...... 3.51 0.00 4.46 7.98 4.06 5.94

Total ...... 191.29 0.07 44.59 235.96 191.71 214.69

Annualized ...... 27.29 25.17 * These costs include additional delay, travel, and TWIC replacement costs due to TWIC failures. Invalid electronic TWIC inspection transaction would lead to the use of a secondary processing operation, such as a visual TWIC inspection, additional identification validation, or other provisions as set forth in the FSP. Such actions cause delays. Furthermore, the use of TWIC readers will also increase the likelihood of faulty TWICs (TWICs that are not machine readable) being identified and the need for secondary screening procedures so affected workers and operators can address these issues. If a TWIC holder’s card is faulty and cannot be read, the TWIC-holder would need to travel to a TWIC Enrollment Center to get a replacement TWIC, which may result in additional travel and replacement costs. To- tals may not sum due to rounding.

Final Rule Costs implementation delay will comply in table 5 for years 1 and 2 ($68.31 million This rule will delay the effective date year 4. We maintain this assumption to + $68.31 million = $136.63 million). We of the TWIC Reader rule by 3 years for provide a consistent comparison calculated the total baseline capital 370 facilities that handle bulk CDC and between the baseline cost estimates costs for replacing TWIC readers 5 years an unestimated number of facilities that presented in the TWIC Reader rule, and after the original installation by adding receive vessels carrying bulk CDC, but the costs of this rule. the baseline capital costs presented in do not transfer it to or from the vessel The costs are separated into three table 5 for years 6 and 7 ($10.53 million during that vessel-to-facility interface. categories: Capital costs, maintenance + $10.53 million = $21.06 million). We For analytical purposes, we maintain costs, and operating costs. To estimate then multiplied these numbers by the the assumption from the 2016 TWIC the capital costs in a given year, we percentage of facilities incurring the Reader rule RA that 50 percent of multiplied the total baseline capital cost in a given year. For example, in facilities will comply each year of the costs for all facilities by the percentage year 1, a total of 78 facilities are implementation period. Therefore, for of facilities incurring costs in a given expected to incur capital costs, for a this rule we assume that 50 percent of year. We calculated the total initial total industry cost of $20.30 million facilities with a 3-year implementation baseline capital costs for TWIC ($136.63 million × (78 facilities ÷ 525 delay will comply in year 3, and 50 installation for all facilities by adding facilities)). Table 7 presents annual percent of facilities with a 3-year the baseline capital costs presented in capital costs for all years.

TABLE 7—CAPITAL COSTS FOR FACILITIES OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE [Millions 2016 dollars]

Total number Total baseline Number of of facilities Year capital costs facilities with subject to the Annual capital cost capital costs rule

(a) (b) (c) (d) = (a) × [(b) ÷ (c)]

1 ...... $136.63 78 525 $20.30 2 ...... 136.63 77 525 20.04 3 ...... 136.63 185 525 48.14 4 ...... 136.63 185 525 48.14 5 ...... 136.63 0 525 0.00 6 ...... 21.06 78 525 3.13 7 ...... 21.06 77 525 3.09 8 ...... 21.06 185 525 7.42 9 ...... 21.06 185 525 7.42 10 ...... 21.06 0 525 0.00

Total ...... 157.69 Note: Totals may not sum due to rounding.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13511

Because maintenance costs are not $2.11 million, is found in year 3 of table installed, the total number of facilities incurred until the year after the TWIC 5 as this is the first year that all facilities incurring the cost is equal to the total readers are installed, we calculated the will incur maintenance costs under the number of complying facilities in the maintenance costs in a given year by baseline. To estimate maintenance costs, previous year. For example, we multiplying the total baseline costs for we multiplied the percentage of calculated Year 2 costs as follows: $2.11 all facilities by the percentage of facilities incurring the cost in a given million × (78 facilities ÷ 525 facilities) facilities complying in the previous year by the total costs. Because = $0.31 million. Table 8 presents annual year. The total initial baseline maintenance costs are not incurred until maintenance costs for all years. maintenance costs for TWIC readers, the year after the TWIC reader is

TABLE 8—TOTAL MAINTENANCE COSTS FOR FACILITIES OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE [Millions 2016 dollars]

Number of Total number Total baseline facilities with of facilities Annual maintenance Year maintenance maintenance subject to the cost costs costs rule

(a) (b) (c) (d) = (a) × [(b) ÷ (c)]

1 ...... $2.11 0 525 $0.00 2 ...... 2.11 78 525 0.31 3 ...... 2.11 155 525 0.62 4 ...... 2.11 340 525 1.36 5 ...... 2.11 525 525 2.11 6 ...... 2.11 525 525 2.11 7 ...... 2.11 525 525 2.11 8 ...... 2.11 525 525 2.11 9 ...... 2.11 525 525 2.11 10 ...... 2.11 525 525 2.11

Total ...... 14.94 Note: Totals may not sum due to rounding.

We estimated operational costs in a first year a facility installs a TWIC we calculated the total initial costs to be similar manner, multiplying total reader. Therefore, the total initial $0.617 million ($4.206 million × (77 operational costs by the percentage of operational cost to industry is $4.206 facilities ÷ 525 facilities)), and we facilities complying in a given year. million ($4.39 million ¥ $0.187 calculated the total ongoing costs to be Table 7 presents the total cost to million). We then multiplied the total $0.210 million ($1.416 million × (78 facilities under this final rule. We cost by the percentage of new facilities facilities ÷ 525 facilities)), for a total cost calculated total operational costs by complying in a given year. We also of $0.827 million ($2.10 million + $0.21 adding the baseline operational costs in accounted for ongoing costs to industry, million). The $1.416 million ongoing Years 1 and 2 as presented in table 5 which we calculated by multiplying the cost includes not only the $0.187 ($2.10 million + $2.29 million = $4.39 total ongoing operational costs of $1.42 million in ongoing costs, but also the million). However, this total includes a million per year (see year 3 of table 5) cost to update the canceled card list $0.187 million in costs for ongoing costs by the percentage of facilities incurring annually. Table 9 presents annual such as training, which do not occur the ongoing costs. For example, in year 2, operational costs. TABLE 9—TOTAL OPERATIONAL COSTS FOR FACILITIES OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE [Millions 2016 dollars]

Total Total Total Number of number of baseline Number of Total Year baseline facilities facilities Total initial ongoing facilities Total ongoing operational initial costs with subject to operational costs operational with ongo- operational costs costs initial costs the rule costs ing costs

(a) (b) (c) (d) = (a) × [(b) ÷ (c)] (e) (f) (g) = (e) × [(f) ÷ (c)] (h) = (d) + (g)

1 ...... $4.206 78 525 $0.62 $1.42 0 $0.00 $0.62 2 ...... 4.206 77 525 0.62 1.42 78 0.21 0.83 3 ...... 4.206 185 525 1.48 1.42 155 0.42 1.90 4 ...... 4.206 185 525 1.48 1.42 340 0.92 2.40 5 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42 6 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42 7 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42 8 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42 9 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42 10 ...... 4.206 0 525 0.00 1.42 525 1.42 1.42

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13512 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

TABLE 9—TOTAL OPERATIONAL COSTS FOR FACILITIES OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE—Continued [Millions 2016 dollars]

Total Total Total Number of number of baseline Number of Total Year baseline facilities facilities Total initial ongoing facilities Total ongoing operational initial costs with subject to operational costs operational with ongo- operational costs costs initial costs the rule costs ing costs

(a) (b) (c) (d) = (a) × [(b) ÷ (c)] (e) (f) (g) = (e) × [(f) ÷ (c)] (h) = (d) + (g)

Total ...... 14.25 Note: Totals may not sum due to rounding.

Table 10 presents the total this final rule, including all capital, undiscounted cost to facilities under maintenance, and operational costs.

TABLE 10—TOTAL COST FOR FACILITIES OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE [Millions 2016 dollars]

Number of Total number Maintenance Operational Undiscounted Year new facilities of facilities Capital costs costs costs total

1 ...... 78 78 $20.30 $0.00 $0.62 $20.92 2 ...... 77 155 20.04 0.31 0.83 21.18 3 ...... 185 340 48.14 0.62 1.90 50.67 4 ...... 185 525 48.14 1.36 2.40 51.91 5 ...... 0 525 0.00 2.11 1.42 3.52 6 ...... 0 525 3.13 2.11 1.42 6.65 7 ...... 0 525 3.09 2.11 1.42 6.61 8 ...... 0 525 7.42 2.11 1.42 10.94 9 ...... 0 525 7.42 2.11 1.42 10.94 10 ...... 0 525 0.00 2.11 1.42 3.52

Total ...... 157.69 14.94 14.25 186.87 Note: Totals may not sum due to rounding.

Table 11 summarizes the total costs to unchanged from the baseline. We within a given year and phasing them in industry of this rule. This rule will not calculated the additional costs by 2 years. Over 10 years, we estimate the impact the compliance schedule of multiplying the totals in Table 5 by the annualized cost to industry to be $23.92 vessels. Therefore, these costs remain percentage of facilities complying million at a 7-percent discount rate.

TABLE 11—TOTAL INDUSTRY COST UNDER OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE [Millions, 2016 dollars] 121

Additional Year Facility Vessel costs * Undiscounted 7% 3%

1 ...... $20.92 $0.022 $0.66 $21.61 $20.19 $20.98 2 ...... 21.18 0.0038 1.32 22.50 19.65 21.21 3 ...... 50.67 0.0038 2.89 53.56 43.72 49.01 4 ...... 51.91 0.0038 4.46 56.37 43.00 50.08 5 ...... 3.52 0.0038 4.46 7.98 5.69 6.89 6 ...... 6.65 0.019 4.46 11.13 7.42 9.32 7 ...... 6.61 0.0038 4.46 11.07 6.90 9.00 8 ...... 10.94 0.0038 4.46 15.41 8.97 12.16 9 ...... 10.94 0.0038 4.46 15.41 8.38 11.81 10 ...... 3.52 0.0038 4.46 7.98 4.06 5.94

Total ...... 186.87 0.072 36.08 223.02 167.98 196.40

Annualized ...... 23.92 23.02 * These costs include additional delay, travel, and TWIC replacement costs due to TWIC failures. Totals may not sum due to rounding.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13513

Table 12 presents the estimated transfer it to or from a vessel, and annualized cost savings to industry of change in total costs to industry from facilities that receive vessels carrying $3.38 million at a 7-percent discount delaying the implementation of the bulk CDC, but do not transfer it to or rate. TWIC reader rule by 3 years for facilities from the vessel during that vessel-to- that handle bulk CDC, but do not facility interface. We estimated an

TABLE 12—TOTAL CHANGE IN INDUSTRY COST FROM PARTIALLY DELAYING THE EFFECTIVE DATE OF TWIC READER RULE [Millions, 2016 dollars]

Total 10-year cost Annualized cost Total 10-year cost (discounted) (not discounted) 7% 3% 7% 3%

TWIC reader rule ...... $235.96 $191.71 $214.69 $27.29 $25.17 Delay TWIC Reader rule by 3 years ...... 223.02 167.98 196.40 23.92 23.02

Change ...... (12.95) (23.73) (18.28) (3.38) (2.14)

Qualitative Costs facilities that receive vessels carrying dollars to 2016 dollars. For the Qualitative costs are as shown in table bulk CDC. There is no change in cost to government analysis, we used the fully 3. This rule will delay the cost to the government resulting from TWIC loaded 2016 wage rate for an E–5 level retrieve or replace lost Personal inspections, because inspections are staff member, $51 per hour, from Identification Numbers (PINs) for use already required under MTSA, and the Commandant 7310.1R: Reimbursable with TWICs for the facilities with TWIC reader requirements do not Standard Rates, in place of the 2012 delayed implementation. modify these requirements. As such, wage of $49 per hour.122 We then there is no additional cost to the estimate a government cost of $53,550 Government Costs government. in the first 2 years ($51 × 4 hours per This final rule will also generate a To estimate the cost to the review × 262.5 plans).123 Table 13 cost savings to the government from government, we followed the same presents the annualized baseline delaying the review of the revised approach as the industry cost analysis government costs of $13,785 at a 7- and adjusted the cost estimate presented security plans for 370 Risk Group A percent discount rate. facilities that handle bulk CDC and in the TWIC Reader rule RA from 2012

TABLE 13—TOTAL GOVERNMENT COST UNDER 2016 TWIC READER RULE [2016 Dollars]

Year Cost of FSP 7% 3%

1 ...... $53,550 $50,047 $51,990 2 ...... 53,550 46,773 50,476 3 ...... 0 0 0 4 ...... 0 0 0 5 ...... 0 0 0 6 ...... 0 0 0 7 ...... 0 0 0 8 ...... 0 0 0 9 ...... 0 0 0 10 ...... 0 0 0

Total ...... 107,100 96,819 102,466

Annualized ...... 13,785 12,012

Table 14 presents the government cost bulk. We estimated the annualized we used the same approach as the under this final rule, from delaying the government cost to be $12,556 at a 7- baseline cost estimates.124 effective date of the 2016 TWIC Reader percent discount rate. To estimate rule for facilities that handle CDC in government costs in year 1 and year 2,

121 See page 55 of the TWIC Delay final rule, table have no impact on the costs associated with vessel 124 We calculated the total cost in year 1 as 4 6. security plans, and, therefore, we did not include hours × $51 × 202 FSPs; the total cost in year 2 as 122 Because the Coast Guard is not delaying the them in this RA. 4 hours × $51 × 201 FSP; and the total cost in Years implementation schedule for vessels, the rule will 123 See page 72 of the 2016 TWIC Reader rule RA. 3 and 4 as 4 hours × $51 × 61 FSPs.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13514 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

TABLE 14—TOTAL GOVERNMENT COSTS OF PARTIALLY DELAYING THE EFFECTIVE DATE OF THE 2016 TWIC READER RULE, RISK GROUP A [2016 Dollars]

Year Cost of FSP 7% 3%

1 ...... $15,912 $14,871 $15,449 2 ...... 15,708 13,720 14,806 3 ...... 37,740 30,807 34,537 4 ...... 37,740 28,792 33,532 5 ...... 0 0 0 6 ...... 0 0 0 7 ...... 0 0 0 8 ...... 0 0 0 9 ...... 0 0 0 10 ...... 0 0 0

Total ...... 107,100 88,190 98,324

Annualized ...... 12,556 11,527

Table 15 presents the estimated TWIC Reader rule by 3 years for bulk CDC. We estimated an annualized change in government costs from facilities that handle bulk CDC and cost savings to the government of $1,229 delaying the implementation of the facilities that receive vessels carrying at a 7-percent discount rate.

TABLE 15—TOTAL CHANGE IN GOVERNMENT COST FROM DELAYING THE EFFECTIVE DATE OF 2016 TWIC READER RULE [2016 Dollars] *

Total cost Annualized cost Total cost (discounted) (not discounted) 7% 3% 7% 3%

TWIC reader rule ...... $107,100 $96,819 $102,466 $13,785 $12,012 Delay TWIC Reader rule by 3 years ...... 107,100 88,190 98,324 12,556 11,527

Change ...... 0.0 (8,630) (4,143) (1,229) (486) * Over a ten year period.

Using a perpetual period of analysis, rule will be delayed will delay the rule by 3 years for 370 facilities, it will we estimated the total annualized cost enhanced benefits of electronic result in cost savings of $23.73 million savings of the rule to be $1.53 million inspection, such as ensuring that only for industry, $0.01 million for in 2016 dollars, discounted back to 2016 individuals who hold valid TWICs are government, and $23.74 million total dollars. granted unescorted access to secure (all discounted at 7 percent) over a 10- areas, enhanced verification of personal Change in Benefits year period of analysis. At a 7-percent identity, and a reduction in potential discount rate, we estimate the As noted, this rule will delay the vulnerability by establishing earlier the annualized cost savings to be $3.38 effective date of the TWIC reader intent of perpetrators who attempt to million to the industry, $0.001 million requirement for three categories of bypass or thwart the TWIC readers. facilities: (1) Facilities that handle to the government, and $3.38 million certain dangerous cargoes in bulk, but Summary of Cost Savings Under total. Using a 3-percent discount rate, do not transfer these cargoes to or from Executive Order 13771 we estimate the annualized cost savings a vessel; (2) facilities that handle certain This rule will generate a cost savings to be $2.14 million to the industry, dangerous cargoes in bulk, and do to both the industry and government, $0.0005 million to the government, and transfer these cargoes to or from a and therefore, this rule is an Executive $2.14 million total. Using a perpetual vessel; and (3) facilities that receive Order 13771 deregulatory action. Table period of analysis, we found total vessels carrying certain dangerous 16 summarizes the cost savings of this annualized cost savings of the rule to cargoes in bulk, but do not, during that rule by comparing and subtracting the industry and the government to be $1.53 vessel-to-facility interface, transfer these costs of this rule from the TWIC Reader million in 2016 dollars, discounted back bulk cargoes to or from those vessels. rule costs. Because this rule will delay to 2016. The facilities for which the TWIC reader the implementation of the TWIC Reader

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13515

TABLE 16—SUMMARY OF COSTS SAVINGS UNDER EXECUTIVE ORDER 13771

Cost savings of this final rule Category (millions 2016$)

Costs to Industry, Government and Total ($ millions, 7% discount rate) ...... Industry: $23.73 (10-year). Government: $0.01 (10-year). Total: $23.74 (10-year). Industry: $3.38 (annualized). Government: $0.001 (annualized). Total: $3.38 (annualized). Industry: $1.53 (perpetual). Government: $0.0005 (perpetual). Total: $1.53 (perpetual).

Alternatives a comprehensive risk analysis at the Guard will not retaliate against small One regulatory alternative to this final individual facility level to determine entities that question or complain about rule is for the Coast Guard to take no whether or not those 370 facilities and this rule or any policy or action of the action. Under this alternative, the TWIC an unknown number of facilities would Coast Guard. Reader rule would become effective 60 be required to comply with the final Small businesses may send comments days after Congress receives the HSOAC rule 60 days after Congress receives the on the actions of Federal employees who enforce, or otherwise determine assessment, and all 370 facilities we HSOAC assessment, and also develop a compliance with, Federal regulations to identified in our 2016 TWIC Reader rule consistent methodology that would form the Small Business and Agriculture RA, in addition to the unknown number the rationale for Coast Guard when Regulatory Enforcement Ombudsman of facilities, would be expected to issuing waivers. and the Regional Small Business comply with the TWIC Reader rule. B. Small Entities Regulatory Fairness Boards. The These entities would be required to Under the Regulatory Flexibility Act, Ombudsman evaluates these actions implement the requirements for the 5 U.S.C. 601–612, we have considered annually and rates each agency’s electronic inspection of TWICs and whether this rule will have a significant responsiveness to small business. If you would incur the costs we estimated in economic impact on a substantial wish to comment on actions by our 2016 TWIC Reader rule RA unless number of small entities. The term employees of the Coast Guard, call 1– a waiver was granted by the Coast ‘‘small entities’’ comprises small 888–REG–FAIR (1–888–734–3247). Guard. businesses, not-for-profit organizations Another alternative the Coast Guard that are independently owned and D. Collection of Information considered was a waiver approach. operated and are not dominant in their This rule calls for no new collection However, because we currently lack a fields, and governmental jurisdictions of information under the Paperwork comprehensive risk analysis on the level with populations of less than 50,000. Reduction Act of 1995, 44 U.S.C. 3501– of individualized facilities, we do not The Coast Guard will delay the 3520. believe this approach maximizes effective date of the TWIC Reader rule E. Federalism benefits. In the absence of a new until May 8, 2023 for facilities that comprehensive risk analysis, the Coast handle CDC in bulk. We estimate these A rule has implications for federalism Guard might issue blanket waivers that facilities will experience an annualized under Executive Order 13132 include facilities that may indeed cost savings of approximately $9,000 (Federalism) if it has a substantial direct warrant the additional security of (with a 7-percent discount rate), and effect on States, on the relationship electronic inspection. For example, that on average each entity owns two between the national government and consider two facilities with a 5,000 facilities and will save approximately the States, or on the distribution of gallon tank of a CDC each. The tank in $18,000. We calculate that power and responsibilities among the the first facility is placed near enough approximately 2% of the small entities various levels of government. We have to the perimeter fence in a populated impacted by this delay rule will have a analyzed this rule under Executive area that, if the tank explodes, would cost savings that is greater than 1% but Order 13132 and have determined that kill enough people to cause a TSI and, less than 3% of their annual revenue. it is consistent with the fundamental therefore, should require electronic The other 98% will have a cost savings federalism principles and preemption TWIC inspection. That same tank on the that is less than 1% of their annual requirements described in Executive other facility is located away from the revenue. Order 13132. Our analysis follows. water in an isolated area within the Given this information, the Coast This rule will delay the MTSA footprint (not near a population). Guard certifies under 5 U.S.C. 605(b) implementation of existing regulations If this tank explodes, it does not cause that this rule will not have a significant on certain facilities after evaluation by a TSI and therefore should not need to economic impact on a substantial a risk-based set of security measures of conduct electronic TWIC inspection. If number of small entities. MTSA-regulated facilities. Based on this the Coast Guard issued a blanket waiver analysis, each facility is classified for those facilities with a storage tank of C. Assistance for Small Entities according to its risk level, which then CDC with 5,000 gallons or less, then we Under section 213(a) of the Small determines whether the facility will be would not be properly implementing Business Regulatory Enforcement required to conduct electronic TWIC these requirements to mitigate the risks Fairness Act of 1996, Public Law 104– inspection. As this rule does not impose as intended. 121, we offer to assist small entities in any new requirements, but simply We rejected both alternatives (‘no understanding this rule so that they can delays the implementation of existing action’ and ‘waiver approach’) because better evaluate its effects on them and requirements, it does not have they do not address our need to conduct participate in the rulemaking. The Coast preemptive impact.

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES 13516 Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations

Additionally, Executive Order 13132 Risks and Safety Risks). This rule is not U.S.C. 4321–4370f), and determined require that for any rules with an economically significant rule and that this action is one of a category of preemptive effect, the Coast Guard will not create an environmental risk to actions that do not individually or provide elected officials of affected State health or risk to safety that might cumulatively have a significant effect on and local governments and their disproportionately affect children. the human environment. A Record of representative national organizations Environmental Consideration (REC) J. Indian Tribal Governments the notice and opportunity for supporting this determination is appropriate participation in any This rule does not have tribal available in the docket where indicated rulemaking proceedings, and implications under Executive Order under the ADDRESSES portion of the consultation with such officials early in 13175 (Consultation and Coordination preamble. This rule is categorically the rulemaking process. Please refer to with Indian Tribal Governments), excluded under paragraph L54 in Table the TWIC Reader final rule for because it will not have a substantial 3–1 of U.S. Coast Guard Environmental additional information regarding the direct effect on one or more Indian Planning Implementing Procedures. federalism analysis of the substantive tribes, on the relationship between the Paragraph L54 pertains to regulations requirements (81 FR 57652, 57706). Federal Government and Indian tribes, that are editorial or procedural. This While it is well settled that States may or on the distribution of power and rule establishes a 3 year postponement not regulate in categories in which responsibilities between the Federal of the effective date for deploying Congress intended the Coast Guard to be Government and Indian tribes. electronic transportation security card the sole source of a vessel’s obligations, K. Energy Effects readers and requiring electronic TWIC the Coast Guard recognizes the key role inspection at certain facilities affected that State and local governments may We have analyzed this rule under by the final rule entitled have in making regulatory Executive Order 13211 (Actions ‘‘Transportation Worker Identification determinations. Additionally, for rules Concerning Regulations That Credential (TWIC)—Reader with federalism implications and Significantly Affect Energy Supply, Requirements,’’ published in the preemptive effect, Executive Order Distribution, or Use). We have Federal Register on August 23, 2016. 13132 specifically directs agencies to determined that it is not a ‘‘significant This rule supports the Coast Guard’s consult with State and local energy action’’ under Executive Order statutory mission to ensure port, governments during the rulemaking 13211, because although it is a waterway, and coastal security. process. If you believe this rule has ‘‘significant regulatory action’’ under implications for federalism under Executive Order 12866, it is not likely List of Subjects in 33 CFR Part 105 Executive Order 13132, please call or to have a significant adverse effect on Maritime security, Navigation (water), email the person listed in the FOR the supply, distribution, or use of Reporting and recordkeeping FURTHER INFORMATION CONTACT section of energy, and the Administrator of OMB’s requirements, Security measures, this preamble. Office of Information and Regulatory Waterways. Affairs has not designated it as a F. Unfunded Mandates significant energy action. For the reasons discussed in the preamble, the Coast Guard amends 33 The Unfunded Mandates Reform Act L. Technical Standards CFR part 105 as follows: of 1995, 2 U.S.C. 1531–1538, requires The National Technology Transfer Federal agencies to assess the effects of PART 105—MARITIME SECURITY: and Advancement Act, codified as a their discretionary regulatory actions. In FACILITIES particular, the Act addresses actions note to 15 U.S.C. 272, directs agencies that may result in the expenditure by a to use voluntary consensus standards in ■ 1. The authority citation for part 105 State, local, or tribal government, in the their regulatory activities unless the continues to read as follows: aggregate, or by the private sector of agency provides Congress, through Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. $100,000,000 (adjusted for inflation) or OMB, with an explanation of why using these standards would be inconsistent 70103; 50 U.S.C. 191; Sec. 811, Pub. L. 111– more in any one year. Although this rule 281, 124 Stat. 2905; 33 CFR 1.05–16.04–11, will not result in such expenditure, we with applicable law or otherwise 6.14, 6.16, and 6.19; Department of do discuss the effects of this rule impractical. Voluntary consensus Homeland Security Delegation No. 0170.1. elsewhere in this preamble. standards are technical standards (e.g., specifications of materials, performance, ■ 2. In § 105.253, revise paragraphs G. Taking of Private Property design, or operation; test methods; (a)(1) and (2) and add paragaphs (a)(3) This rule will not cause a taking of sampling procedures; and related and (4) to read as follows: private property or otherwise have management systems practices) that are § 105.253 Risk Group classifications for taking implications under Executive developed or adopted by voluntary facilities. consensus standards bodies. Order 12630 (Governmental Actions and (a) * * * Interference with Constitutionally This rule does not use technical (1) Beginning June 8, 2020: Facilities Protected Property Rights). standards. Therefore, we did not consider the use of voluntary consensus that receive vessels certificated to carry H. Civil Justice Reform standards. more than 1,000 passengers. This rule meets applicable standards (2) Beginning May 8, 2023: Facilities M. Environment in sections 3(a) and 3(b)(2) of Executive that handle Certain Dangerous Cargoes Order 12988 (Civil Justice Reform) to We have analyzed this rule under (CDC) in bulk and transfer such cargoes minimize litigation, eliminate Department of Homeland Security from or to a vessel. ambiguity, and reduce burden. Management Directive 023–01 and (3) Beginning May 8, 2023: Facilities Environmental Planning Commandant that handle CDC in bulk, but do not I. Protection of Children Instruction (COMDTINST) 5090.1 transfer it from or to a vessel. We have analyzed this rule under (series), which guide the Coast Guard in (4) Beginning May 8, 2023: Facilities Executive Order 13045 (Protection of complying with the National that receive vessels carrying CDC in Children from Environmental Health Environmental Policy Act of 1969 (42 bulk but, during the vessel-to-facility

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 46 / Monday, March 9, 2020 / Rules and Regulations 13517

interface, do not transfer it from or to FOR FURTHER INFORMATION CONTACT: If drawbridge openings in the fall and the vessel. you have questions on this proposed spring. * * * * * rule, call or email Mr. Lee D. Soule, The following bridges will be Bridge Management Specialist, Ninth Dated: October 31, 2019. included in the test deviation: The Coast Guard District; telephone 216– Karl L. Schultz, Union Pacific Railroad Bridge, mile 902–6085, email [email protected]. 0.59, over the Milwaukee River with a Admiral, U.S. Coast Guard, Commandant. SUPPLEMENTARY INFORMATION: vertical clearance in the closed position Editorial note: The U.S. Coast Guard of 7 feet above internet Great Lakes requested that the Office of the Federal I. Background, Purpose, and Legal Datum of 1985 (IGLD85). The Broadway Register hold this document from publication Basis Street Bridge, mile 0.79, over the until delivery to Congress of the assessment Milwaukee River with a vertical required by the Transportation Worker The Milwaukee River is clearance in the closed position of 14 Identification Credential Security Card approximately 104 miles long. Program Act (Pub. L. 114–278). feet above IGLD85. The Water Street Beginning in Fond du Lac County the Bridge, mile 0.94, over the Milwaukee [FR Doc. 2019–24343 Filed 3–6–20; 8:45 am] river flows easterly to a low head dam River with a vertical clearance in the BILLING CODE 9110–04–P just above the Humboldt Avenue Bridge closed position of 14 feet above IGLD85. at mile 3.22 in downtown Milwaukee, The St. Paul Avenue Bridge, mile 1.21, WI. From here the river flows south to over the Milwaukee River with a DEPARTMENT OF HOMELAND Lake Michigan. This southerly course of vertical clearance in the closed position SECURITY the Milwaukee River divides the of 14 feet above IGLD85. The Clybourn lakefront area from the rest of the city. Coast Guard Street Bridge, mile 1.28, over the The Menomonee River joins the Milwaukee River with a vertical Milwaukee River at Mile 1.01 with the 33 CFR Part 117 clearance in the closed position of 14 Kinnickinnic River joining the feet above IGLD85. Michigan Street Milwaukee River at Mile 0.39. 21 [Docket No. USCG–2019–0824] Bridge, mile 1.37, over the Milwaukee bridges cross the Milwaukee River from River with a vertical clearance in the Drawbridge Operation Regulation; mile 0.19 to mile 3.22. In the early 20th closed position of 12 feet above IGLD85. Milwaukee, Menomonee, and Century, the Milwaukee River was The Wisconsin Avenue Bridge, mile Kinnickinnic Rivers and Burnham heavily used to support the industries in 1.46, over the Milwaukee River with a Canals, Milwaukee, WI and around the Great Lakes. Today, the vertical clearance in the closed position river has been redeveloped as a tourist of 12 feet above IGLD85. The Wells AGENCY: Coast Guard, DHS. and recreational destination. From its Street Bridge, mile 1.61, over the ACTION: Notice of temporary deviation confluence with the Milwaukee River Milwaukee River with a vertical from regulations; request for comments. the Menomonee River flows west for 33 clearance in the closed position of 12 miles. The lower three miles of the feet above IGLD85. The Kilbourn SUMMARY: The Coast Guard is seeking Menomonee River is passable by vessels Avenue Bridge, mile 1.70, over the information and comments during a test over 600 feet in length. Seven bridges Milwaukee River with a vertical schedule for the bridges crossing the cross the navigable portion of the clearance in the closed position of 14 Milwaukee, Menomonee, Kinnickinnic Menomonee River. feet above IGLD85. The State Street River, South Menomonee River, and The South Menomonee Canal and the Bridge, mile 1.79, over the Milwaukee Burnham Canals. The city of Milwaukee Burnham Canal were both excavated River with a vertical clearance in the requested the regulations to be reviewed during a waterways improvement closed position of 14 feet above IGLD85. and updated to allow for a more project in 1864. Both man-made canals The Highland Avenue Pedestrian balanced flow of maritime and land are tributaries of the Menomonee River Bridge, mile 1.97, over the Milwaukee based transportation. The current branching just above its mouth. The River with a vertical clearance in the regulation has been in place for over 30 South Menomonee Canal is crossed by closed position of 12 feet above IGLD85. years and is obsolete. This deviation two bridges and the Burnham Canal is The Juneau Avenue Bridge, mile 2.06, will test a change to the drawbridge crossed by three bridges. The over the Milwaukee River with a operation schedule to determine Kinnickinnic River flows north through vertical clearance in the closed position whether a permanent change to the the southern portion of the City of of 14 feet above IGLD85. The Knapp schedule is needed. The Coast Guard is Milwaukee connecting with the Street/Park Freeway Bridge, mile 2.14, seeking comments from the public Milwaukee River near Lake Michigan. over the Milwaukee River with a regarding these proposed changes. Only the lower 2.30 miles of the river vertical clearance in the closed position DATES: This deviation is effective from have been improved for vessel use. Five of 16 feet above IGLD85. The Cherry midnight on April 15, 2020 and ends at bridges cross the river with the Lincoln Street Bridge, mile 2.29, over the midnight on November 2, 2020. Avenue Bridge at the head of Milwaukee River with a vertical Comments and related material must navigation. Freighters up to 1,000 feet in clearance in the closed position of 14 reach the Coast Guard on or before length transfer cargoes at the confluence feet above IGLD85. The Pleasant Street November 2, 2020. of the Kinnickinnic and Milwaukee Bridge, mile 2.58, over the Milwaukee ADDRESSES: You may submit comments Rivers. Most of the recreational vessels River with a vertical clearance in the identified by docket number USCG– in Milwaukee moor in the lake front closed position of 14 feet above IGLD85. 2019–0824 using Federal eRulemaking marinas and only transit the rivers. Boat The Canadian Pacific Railroad Bridge, Portal at http://www.regulations.gov. yards on the Menomonee and mile 1.05, over the Menomonee River See the ‘‘Public Participation and Kinnickinnic rivers haul out and store with a vertical clearance in the closed Request for Comments’’ portion of the most of the recreational vessels in the position of 8 feet above IGLD85. The SUPPLEMENTARY INFORMATION section fall and winter months and launch the North Plankinton Avenue Bridge, mile below for instructions on submitting vessels in the spring. This action 1.08, over the Menomonee River with a comments. contributes to a considerable surge in vertical clearance in the closed position

VerDate Sep<11>2014 16:34 Mar 06, 2020 Jkt 250001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\09MRR1.SGM 09MRR1 jbell on DSKJLSW7X2PROD with RULES